The first day of hearings to determine the legality of former President Trump’s appointment of special counsel Jack Smith in his classified documents investigation ended without a decision on Friday.
The hearing took place Friday at a courthouse in Fort Pierce, Florida., Court ended around 2:30 p.m. after hearing arguments from the defense and prosecution, as well as constitutional scholars supporting both sides’ analyses.
U.S. District Judge Eileen Cannon heard arguments from lawyers supporting Trump’s defense arguments before concluding the hearing for the day.
Josh Blackman, of the Landmark Legal Foundation, argued that Smith did not have the proper authority to exercise the powers he was given.
Trump Classified Documents Judge to Consider Allegations of ‘Illegal’ Appointment of Special Counsel Jack Smith
Donald Trump and Jack Smith (Getty Images)
The debate centered on whether the law empowers the Department of Justice and Attorney General Merrick Garland to appoint a special counsel like Smith. The hearing was policy-heavy, with each side trying to make the case for what the law really means and what powers it ultimately gives to Garland and Smith.
Matthew Seligman Constitutional scholar A lawyer and scholar representing the Justice Department, she argued during the hearing, pointing to a specific passage of law that underpinned Garland’s appointment of Smith in the classified documents case.
He pointed out to Cannon that the word “appoint” is used in Section 533. This is important, he explained, because rank-and-file employees are not appointed to office. The word is used in the context of government employees who are appointed to office.
Seligman, who is part of a group of constitutional lawyers called Defenders of Democracy, said the law makes it abundantly clear that it gives the attorney general the power to appoint such an official, or a special prosecutor, to prosecute crimes in the United States.
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Florida Judge Eileen Cannon Presiding Over Former President Trump’s Case (Reuters)
Trump’s lawyers argued that the suit should be dismissed because Smith was illegally appointed and not confirmed by Congress.
Lawyer Emil Bove used the term “shadow government” to argue for Smith’s appointment.
Bove used the term to describe a situation in which lower-ranking officers who have not been confirmed by the Senate have power. “That’s the risk we face,” he said.
Justice Department prosecutor James Pierce defended Smith’s team, telling Cannon in his opening remarks that the Trump team’s legal analysis was “precluded by precedent” and could lead to “harmful results.”
Smith’s team argues that Garland has the legal authority to appoint a special counsel, pointing to 28 U.S. Code Section 516, which gives the attorney general the power to prosecute criminal cases and to handle any litigation on behalf of the United States.
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Jack Smith spoke at a press conference in Washington, DC on August 1, 2023. (Al Drago/Bloomberg via Getty Images)
Pierce also told Cannon that while Smith’s team routinely operates independently, Justice Department rules allow the attorney general to demand an explanation for any actions the special counsel takes.
Cannon was very forthcoming during the hearing, questioning both sides, including asking Bove about Section 533: “What is a special counsel and what is a special assistant? What’s the difference?”
At the end of the hearing, after hours of arguing about arcane and complex legal issues, Cannon appeared to focus on one issue: whether Garland was directly involved in the prosecution of President Trump.
Cannon asked Pierce whether there had been any oversight by Garland of Smith’s team in relation to the issue, where Garland has repeatedly assured Congress that Smith was acting independently and without coordination with the Biden administration.
Pierce assured the judge that Smith’s team was following all of the Justice Department’s rules regarding special counsels.
Cannon is expected to issue a written order in the coming days.
Fox News Digital’s Julia Johnson and Jamie Joseph contributed to this report.
