Constitutional Law

Judge hears challenge to appointment, funding of special counsel in Trump documents case

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Classified documents seized from Mar-a-Lago

A photo of documents from former President Donald Trump’s Mar-a-Lago home in Palm Beach, Florida, submitted as evidence by the Department of Justice in federal court in Florida. (Image from the Department of Justice)

A federal judge overseeing the classified documents case against former President Donald Trump heard arguments Friday on whether U.S. Attorney General Merrick Garland had constitutional authority to appoint special counsel Jack Smith.

U.S. District Judge Aileen M. Cannon of the Southern District of Florida heard from three lawyers who filed amicus briefs along with lawyers for Trump and the U.S. Department of Justice.

One group of amicus brief authors supporting Trump had advanced a similar argument before the U.S. Supreme Court, writing that Smith “has no more authority to represent the United States in this court than Bryce Harper, Taylor Swift or Jeff Bezos.”

The New York Times, USA Today, CBS News and Law360 are among the publications with coverage of Friday’s hearing. MSNBC’s Deadline: Legal Blog covered the issue in advance of the hearing and linked to the amicus briefs (here, here and here) and a brief filed by Trump’s lawyers. CBS News linked to the government’s response to the argument.

At issue, according to a brief filed by lawyers for Trump, is whether Smith’s appointment violated the appointments clause of the Constitution. It says a president must nominate, with the “advice and consent of the Senate” any “officers of the United States” whose appointments are “established by law.” It also says Congress may vest the appointment of “inferior officers” to “the heads of departments.”

There is no statute creating an office of special counsel, and statutes cited by the DOJ don’t give Garland the authority to make the appointment, Trump’s brief says.

“The appointments clause does not permit the attorney general to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States,” the brief for Trump says. “As such, Jack Smith lacks the authority to prosecute this action.”

The government, on the other hand, argued that the appointment was authorized by federal laws, including Section 533-1 of Chapter 28 of the U.S. Code. It permits the attorney general to appoint officials “to detect and prosecute crimes against the United States.”

Lawyers also differed on whether Smith is a principal officer requiring U.S. Senate approval or an inferior officer who does not.

“This has been very illuminating and helpful,” Cannon said at the end of the hearing Friday.

According to the New York Times, arguments lasted about four hours and included “a steady beat” of Cannon’s questions, often beginning with, “Would you agree that.”

According to Law360, Cannon “seemed hesitant to buck tradition and repeatedly pointed to the long history of special prosecutors, asking if one should infer congressional acquiescence on the issue.”

Cannon heard arguments Monday on a different question: whether funding for the special prosecutor is improper.

“President [Joe] Biden’s DOJ is paying for this politically motivated prosecution of Biden’s chief political rival ‘off the books,’ without accountability or authorization,” Trump’s brief argued.

During the hearing, Cannon said the lack of a funding cap raised separation-of-powers concerns, according to CNN.

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