With no trial date in sight for Donald Trump’s classified documents case, U.S. District Judge Aileen Cannon is holding another round of pre-trial hearings to hear out the former president's complaints about special counsel Jack Smith’s authority and proposed gag order.
The latest pre-trial hearings will continue Tuesday and come as the trial remains stuck in limbo after Cannon – a Trump appointee – indefinitely pushed the trial date back in May. Trump pleaded not guilty last year to 40 criminal charges stemming from the discovery of classified documents at Mar-a-Lago after he left office.
D.C.-based national security attorney Bradley Moss pointed out that the late June hearings come months after Trump began filings such complaints.
“The key isn’t that she ultimately rejects the motion, it is the months she wasted sitting on the issue that matters,” Moss said.
Moss pointed to a recent article by The New York Times, which found that two more experienced judges urged Cannon to hand off Trump’s classified document cases to another jurist.
“She is inexperienced, had already made an egregiously flawed ruling in the pre-indictment phase that resulted in an appellate court thrashing, and appeared in over her head,” Moss said. “It would have been easy to reassign it to another judge but she refused, and the result has been the administrative mess in which that case now finds itself.”
In court Friday and Monday, Trump’s lawyers argued that Attorney General Merrick Garland lacks power under the Constitution to appoint a special counsel – and that the Senate should have confirmed Smith instead.
“The text of these statutes really matters,” Trump lawyer Emil Bove said Friday, according to The New York Times.
According to federal statute, “grounds for appointing a special counsel” include when:
“(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”
Trump’s lawyers are pointing to another federal statute that says:
“The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct…”
Trump’s lawyers argue that means only Senate-confirmed U.S. attorneys can be appointed as special counsel.
But in filings entered on Sunday, the special counsel pointed out that when Trump’s former Attorney General William Barr served under former President George H.W. Bush, Barr appointed non-U.S. attorneys including former circuit and district judges.
Moss said Trump’s arguments are both expected and have long failed for other defendants.
“Virtually every criminal defendant indicted by a special counsel challenges the lawfulness of the appointment, and since the 70s those challenges have failed over and over again,” Moss said. “That Judge Cannon decided she needed two days of hearings on the subject is within her discretion but arguably an act of considerable hubris.”
Also on Monday, Trump’s lawyers continued to argue that Smith’s appointment violates the Appropriations Clause of the Constitution, which says in part: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Trump’s lawyers have argued that Smith’s “permanent indefinite appropriation” for “politically-motivated work” is unconstitutional and outside the Congressional budget process.
"Is there any cap to the funding?" Cannon asked, according to ABC News.
"No, and I think that is part of the reason ... to be very wary of who can access it and why," Bove said. "There is no check on the scope of what's going on here."
Meanwhile, prosecutors said that long-held court precedents have upheld the special counsel’s appointment. In their Sunday filing, prosecutors included a 1993 report by former special counsel and U.S. District Judge Nicholas J. Bua, who said his team had “devoted considerable resources to investigating the myriad allegations.”
Moss said he expects Cannon will reject Trump’s motions about the lawfulness of Smith’s operations. “But I also fully expect her to take various potshots at the entire setup, just as she has done in prior rulings,” he predicted.
According to ABC News, Cannon asked assistant special counsel James Pearce about potential constitutional concerns with the special counsel’s budget.
"When it's limitless, I think there is a separation of powers concern,” Cannon said.
Pearce said the DOJ budget could fund Smith’s case if necessary – even though that wasn’t the case for the previous eight U.S. special counsels.
Trump’s lawyers have said it’s unlikely there is “any source of funding at DOJ that could have funded” Smith’s work.
Bove said that again Monday, according to ABC: "It is difficult for me to imagine how that resolves the motion here. I think there would be a very strong political response."
Also on Monday, Cannon was set to hear arguments about the prosecution’s proposed gag order for Trump.
Smith filed a motion asking Cannon to modify Trump’s conditions of release to ensure he cannot “make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.”
Smith’s motion stated that some of those law enforcement agents “will be witnesses at trial.”
Smith referenced Trump’s comments concerning the Mar-a-Lago raid – claims which have included that President Joe Biden was “locked & loaded ready to take me out."
But there is no evidence of a plot to kill Trump, as The Associated Press reported. Trump was pointing to boilerplate language about “use of deadly force” in the operations order for the Mar-a-Lago raid. It’s standard to include that language – which sets out Department of Justice use-of-force policy – in those orders.
Still – some experts have questioned the constitutionality of such a gag order. Syracuse University law professor Gregory Germain has told Salon that "free speech cases make it pretty clear that you can't restrict someone's speech because of how someone else might respond to it.”
In a Friday filing, prosecutors said Trump’s statements – including threatening public statements and promises of vengeance – pose an “imminent threat” to law enforcement.
According to prosecutors, a Trump supporter “armed with an AR-15 and a nail gun” tried to attack an FBI office in Ohio three days after the Mar-a-Lago raid.
Prosecutors allege that hours after Trump posted about the raid, the supporter posted: “Kill F.B.I. on sight” and advocated “combat” against the FBI.
And prosecutors said this month that a Trump supporter was charged with making threats by calling an FBI agent’s phone number and claiming that FBI agents will be “hunt[ed] down” and “slaughter[ed] in their own homes.”
Moss said Cannon will likely want to avoid denying the governor’s proposed gag order – with a denial meaning an automatic appeal.
“I expect she will try to find a middle ground that recognizes the seriousness of the allegations while not quite giving the government the sort of speech restriction that courts in New York and DC authorized,” Moss said.
On Tuesday, the judge will hear arguments from Trump lawyers and prosecutors about the F.B.I. raid itself and whether to exclude Trump's communications with his lawyers as evidence.
Trump lawyers want the court to suppress that evidence and dismiss the indictment.
"Only biased agents on a politically motivated mission to raid President Trump’s residence could have regarded the document as providing adequate limitations and guidance," his lawyers said, referring to the warrant authorizing the search, in a May filing.
Prosecutors say the warrant to search Mar-a-Lago was "valid and lawful."
And while Trump's lawyers argue that the government improperly obtained evidence from his lawyers, prosecutors pointed out that the government obtained it following a grand jury subpoena.
"Trump was informed of the motion so that he could participate in the litigation, and the district court ordered Trump’s lawyers to provide the evidence under the crime-fraud exception," reads the government's May filing. "Those steps were not 'extraordinary,' let alone 'unlawful.'"
