Lawyers for Donald Trump are hoping to convince a federal judge in Florida to throw out the classified documents case against him by arguing that the special prosecutor who brought the charges is unlawfully appointed and unconstitutionally funded.
Meanwhile, House Republicans are fighting a similar battle on behalf of the former president, with legislation and funding memos aimed at eliminating federal funds for what they’re calling “politicized prosecutions.”
Attorneys for the former president returned to a federal courtroom in Fort Pierce, Florida on Monday for a second day of hearings on their long-shot motions to disqualify special counsel Jack Smith, part of Trump’s strategy to throw what are largely frivolous court filings at judges in the hopes of at least delaying his trials until after Election Day.
On Friday, Trump’s lawyers argued that Smith was illegally appointed to the role, though the Trump-appointed judge presiding over the case appeared mostly skeptical, pointing to “well-defined” regulations surrounding special counsel appointments and their roles.
Monday’s hearing centered around Trump’s arguments that the way the special counsel’s office is funded violates the Constitution’s appropriations clause. Defense attorney Emil Bove argued there is no “valid appropriations that validates what’s going on” in the special counsel’s case, and that the office should not have access to “permanent, indefinite appropriations” to fund itself.
In a filing earlier this year, Trump’s attorneys argued that President Joe Biden, through the Department of Justice, “is paying for this politically motivated prosecution of Biden’s chief political rival ‘off the books,’ without accountability or authorization.”
Prosecutors responded by calling the defense’s claims “unsound” and arguing that the attorney general “has exclusive authority (except as otherwise provided by law) to direct ‘the conduct of litigation’ on behalf of the United States.”
“The Special Counsel’s investigation is lawfully funded through an appropriation that has been used repeatedly to pay similar special and independent counsels,” prosecutors wrote response, “and the lawfulness of this practice is confirmed by statutory text, history, and longstanding practice (including funding for a special counsel appointed during Trump’s administration).”
Judge Aileen Cannon not only agreed to hear arguments from Trump’s attorneys about the constitutionality of Smith’s funding but questioned if there is any “cap” on how much the office can receive.
“I think there is a separation of powers concern,” said Cannon, who clarified that she is not “indicating anything” by asking about funding but rather trying to “cover the scope of what’s being briefed here.”
Meanwhile, Trump’s House Republican allies — who have amplified baseless allegations that Biden is coordinating with state and federal prosecutors to derail Trump’s election chances — have introduced legislation aimed at stopping the cases altogether.
One bill endorsed by Republicans on the House Judiciary Committee would “authorize removal of an action or prosecution against a President, Vice President, former President, or former Vice President.”
Committee chair Jim Jordan — who also chairs the GOP-led “Select Subcommittee on the Weaponization of the Federal Government” — has also called on House Republicans to “eliminate federal funding for state prosecutors or state attorneys general involved in lawfare and to zero out federal funding for federal prosecutors engaged in such abuse.”
House Republicans also have voted to hold Attorney General Merrick Garland in contempt of Congress for his refusal to turn over audio recordings from special counsel Robert Hur’s interview with President Biden, marking a major escalation of the House GOP’s fight with the administration and a justice system that Republicans, and Trump, dubiously believe is unfairly targeting them.
The Justice Department said it would not prosecute Garland based on that referral, which House Speaker Mike Johnson said he would appeal.
