U.S. District Judge Eileen Cannon has expanded the scope of a June 21 hearing in President Donald Trump’s classified documents case, which could void Jack Smith’s appointment as special counsel and overturn the charges against President Trump.
Judge Cannon’s order late Tuesday night allows the lawyers to argue multiple briefs filed by outside counsel, including one filed by lawyers representing former Attorney General Ed Meese, Citizens United and others that argues Jack Smith’s appointment is unconstitutional.
The group initially filed an amicus brief. simple When Smith filed a motion for leave to appeal with the Supreme Court in December regarding President Trump’s immunity, the amicus argued that Smith’s appointment was unconstitutional because his position was not created by Congress, and further argued that even if it had been created, the Appointments Clause of the Constitution further provides that Smith could not retain the scope of power he exercises without Senate confirmation.
Essentially, the brief argues that Attorney General Merrick Garland improperly appointed Smith to a position that doesn’t exist and with authority that Garland doesn’t have.
Multiple versions of the amicus brief have been filed by the same group of lawyers at various levels of Trump’s litigation in Washington, including at the Supreme Court.
Judge Cannon appeared to make the unusual decision to allow oral argument from a third party because the legal questions before the court were untested. Two groups supported dismissal of the case, while the third group supported the Department of Justice hiring a special counsel.
Congress once created a special counsel-like office called the “independent counsel,” but that law expired in 1999, leading Meese to argue that Smith’s appointment was legally sound.
The Congress that created the Department of Justice granted “officers” similar powers and authority to those held by Smith, but those officers must be appointed by the president and confirmed by the Senate.
Meese and his associates argue that Smith is merely an employee of Garland and has no such authority, and that Garland has no authority to create such a position or grant such authority.
“As an improper appointee, he has no more authority to represent the United States before this Supreme Court than Bryce Harper, Taylor Swift or Jeff Bezos,” they wrote.
Hours before Cannon’s order, the matter was briefed in a Capitol Hill hearing room to the nation’s highest-ranking law enforcement official.
On Tuesday, Rep. Thomas Massie, R-Ky., asked Garland whether the special counsel’s office was legal after reading the terms of his appointment during an oversight hearing of the House Judiciary Committee.
Garland objected but acknowledged that Smith was not nominated by Biden or confirmed by the Senate.
“You have created an agency within the United States government that does not exist and that has not been authorized by Congress,” Massie told Garland before placing Meese’s amicus brief on the record.
Yesterday before the Judiciary Committee, I asked Attorney General Garland whether the Office of Special Counsel Jack Smith was even legal, and submitted for the record an amicus brief from former Attorney General Meese on the matter. A few hours later, Judge Cannon allowed the matter to be argued in court. pic.twitter.com/TedmtbkmMP
— Thomas Massie (@RepThomasMassie) June 5, 2024
Joining Meese in the amicus brief are former U.S. Attorney General Michael Mukasey, Citizens United (whose chairman, Dave Bossie, is also vice chair of this year’s Republican National Convention in Milwaukee), and two prominent constitutional law experts, represented by lawyers from the powerful Washington, D.C.-based boutique law firm Schall Jaffe & Co.
The Florida lawsuit, one of two criminal cases Smith has filed against Trump, is unlikely to go to trial before the November election because Cannon postponed a key deadline after Trump’s lawyers argued Smith had not preserved key evidence. Cannon’s ruling on Smith’s appointment could come before November, however.
Smith’s Washington, D.C. lawsuit alleging that Trump interfered in the election would be in even greater jeopardy if Judge Cannon rules that Smith’s appointment violates the Appointments Clause. During oral argument in April, the majority of Supreme Court justices were sympathetic to the argument made by Trump’s lawyers that the president enjoys a level of immunity after his term in office.
The Washington state lawsuit is also unlikely to be resolved before the November election.
This incident America vs Trump9:23-cr-80101, U.S. District Court for the Southern District of Florida.
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Matthew Purdy / Breitbart News, Jack Knudsen / Breitbart News
Bradley Jay is Capitol Hill correspondent for Breitbart News. Follow him on X/Twitter. translator.
