On Truth Social, Donald Trump is adamant that the conspiracy goes all the way to the top — that special counsel Jack Smith was appointed to be President Joe Biden’s attack dog, aiming to damage his candidacy with more criminal convictions ahead of the November election. In court, though, Trump’s legal team argued last week that Smith is actually a prosecutor gone rogue, so stridently asserting his independence that, per attorney Emil Bove, he and his team effectively constitute a “shadow government.”
Even U.S. District Judge Aileen Cannon, the Trump appointee overseeing his classified documents case, appeared to think that the claim was a stretch, commenting: “That sounds very ominous.” But even if Cannon is not prepared to declare Smith’s entire existence invalid, affirming the defense argument that the appointment of any special counsel is unconstitutional, last Friday’s hearing raised an all-important question in the minds of legal experts observing the case: What are we even doing here?
“It’s just baffling,” MSNBC legal analyst Lisa Rubin said of Friday’s hearing. What was odd was not just the legal arguments but that Cannon — who last month indefinitely postponed a trial, citing all the work she still has to do — agreed to hold the hearing at all, scheduling almost two days worth of time in court to debate an issue (whether an attorney general can appoint a special counsel) that’s already been settled by numerous other courts. And not just that: at the hearing, she allowed lawyers who aren’t even part of the case to come in and argue on the defendant’s behalf.
The contrast with how she treats prosecutors could not be more obvious.
Cannon “gave almost two full days to the question of whether Jack Smith was lawfully appointed,” Rubin noted. “But when Jack Smith went to her and said we need to modify Trump’s bail conditions because his speech is threatening the safety of people involved in the investigation, Judge Cannon said, literally, you can have two hours this coming Tuesday.”
Rubin was referring to Trump’s claim that Smith and the deep state henchmen who raided Mar-a-Lago were authorized to kill him, a lie so egregious that the FBI, still led by a Trump appointee, issued a rare statement rebutting a former president.
Smith asked for Cannon to modify Trump’s bail conditions on May 24, arguing that his dishonest allegations were endangering members of law enforcement. Over a month will have passed before Smith’s team is allowed to present their arguments in court; in that time, members of the MAGA base, never ones to believe a fact check, have turned Trump’s dangerous rhetoric into deadly threats: one supporter was arrested earlier this month for threatening to “slaughter” an FBI agent and their family over grievances ranging from Hunter Biden to the 2020 election.
In their own filing, prosecutors cite that incident and others spurred by the former president’s incitement, going back to the 2022 raid of Trump’s Florida home, when scores of national secrets were found stashed on the property.
“Shortly after the execution of the search warrant at Mar-a-Lago, one of Trump’s supporters carried out an armed attack on an FBI office in the wake of Trump’s Truth Social statements regarding the search,” the filing notes. “No court would tolerate another defendant deliberately creating such immediate risks to the safety of law enforcement, and this Court should not wait for a tragic event before taking action in this case.”
And yet, as former federal prosecutor Kristy Greenberg noted, instead of speedily addressing that threat, Cannon has dallied, focusing her court’s attention on a “completely frivolous” argument that the Department of Justice is not allowed to have special prosecutors. The gift to Trump’s defense is not just that hearing, but more importantly: the delay it and other frivolous motions have caused by virtue of Cannon agreeing to treat them as serious legal arguments.
All of that, in sum, Greenberg told MSNBC, almost makes the judge an accomplice.
“He is inflaming his base, that is the purpose,” Greenberg, “and by not taking immediate action to make sure that he can’t do that, she’s allowed this kind of inflammation of his base to continue.”
