FORT PIERCE, Fla. (NewsNation) — The federal judge in the classified documents case against former President Donald Trump heard arguments Friday on a defense effort to get the indictment thrown out based on the claim that the prosecutor who brought the charges was illegally appointed.
Federal prosecutors say classified documents related to the nation’s nuclear weapons, defense systems and potential military vulnerabilities were found at Trump’s Florida estate. According to the criminal indictment, the FBI seized 102 documents with classification markings from Mar-a-Lago in August of 2022.
Trump stored boxes containing classified material in a ballroom, a bathroom and shower, an office space, his bedroom and a storage room, prosecutors say.
The former president faces seven different charges, including obstruction and 31 counts of willful retention of national defense information. The case is one of four criminal cases that have been brought against him at the state and federal levels.
Trump seeks dismissal over special counsel Jack Smith’s appointment
Friday’s hearing focused on whether special counsel Jack Smith was lawfully appointed to oversee the prosecution of Trump’s case.
Trump’s team claims Smith’s appointment by Attorney General Merrick Garland in November 2022 was illegal because Congress didn’t approve it and because the special counsel office that he was assigned to lead was also not created by Congress.
Smith’s team argues that Garland had the authority as the head of the Department of Justice to make the appointment and to delegate prosecutorial decisions to him. Prosecutors also note that courts have upheld prior appointments of special counsels, including Robert Mueller by Trump’s Justice Department.
Friday’s arguments kicked off a three-day hearing that will continue next week and is part of a broader series of legal disputes delaying the trial, which was supposed to start last month. The defense has raised multiple challenges to the indictment over the past year, all unsuccessful so far.
Trump attorney Emil Bove asserted that the Justice Department risked creating a “shadow government” through the appointment of special counsels to prosecute select criminal cases. Prosecutors said there was nothing improper or unusual about Smith’s appointment, with James Pearce, a member of Smith’s team at one point saying: “We are in compliance. We have complied with all of the department’s policies.”
Attorney Josh Blackman, who argued against Smith’s appointment, told NewsNation he thought the questions Judge Aileen Cannon asked were fair.
“I think Judge Cannon had fair questions for all sides and I think it was a very robust hearing,” he said. “We were there almost all day and I’m equally looking forward to what she decides.”
Judge rejected suggestions to step aside: Report
Friday’s arguments before U.S. District Judge Aileen Cannon will focus on the decades-old regulations governing the appointment of DOJ special counsels, not the allegations against Trump.
This continues the judge’s pattern of considering defense arguments that prosecutors deem meritless, contributing to the indefinite delay of a trial date.
Cannon, a Trump appointee, has been criticized for her handling of the case, including a previously overturned order for an independent review of classified documents from Mar-a-Lago. Her slow rulings and scheduling of dubious claims make it unlikely the trial will happen before the November election.
She was rebuked in March by prosecutors after she asked both sides to formulate jury instructions and to respond to a premise of the case that Smith’s team called “fundamentally flawed.”
The New York Times reported that two judges, including the chief federal judge in southern Florida, urged Cannon to step aside from the case after it was appointed to her last year.
Will Trump attend court?
Trump was not at the trial on Friday, as he’s not required to be present.
His team is more focused on the Supreme Court’s pending decision on whether he has presidential immunity from criminal prosecution for actions taken during a former president’s tenure, a source told NewsNation.
The former president is also facing an election interference case in Georgia, which has been paused by a court of appeals. He was convicted of business fraud in a New York case and is scheduled to be sentenced in early July, just days before the Republican National Convention, where he is expected to be nominated.
Trump was required to be present during the New York trial, something he complained took his attention away from the campaign trail.
NewsNation digital producer Andrew Dorn and The Associated Press contributed to this report.