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Trump’s Lawyers Challenge Smith's Special Counsel Appointment

 June 22, 2024

A hearing scheduled in Florida will see Donald Trump’s legal team argue for the dismissal of the classified documents case against him, alleging the improper appointment of special counsel Jack Smith by Attorney General Merrick Garland.

Trump’s defense will present its case for Smith's ineligibility on Friday, centering on the claim that his special counsel appointment breaches the constitutional appointments clause, as the Washington Examiner reports.

The defense team contends that Garland's appointment of Smith, a private citizen, without Senate approval was unlawful. This hearing, authorized by Judge Aileen Cannon, follows multiple legal challenges raised by Trump's team concerning the case.

Grounds for Dismissal Cited

In February, Trump’s defense submitted an argument for dismissal, which centers on an appointments clause violation.

Adding their support, an amicus brief from two former Republican attorneys general and two law professors emphasized that the last 40 years saw only Smith and Robert Mueller appointed without Senate confirmation as special prosecutors.

The legal scholars argued that Smith’s appointment contradicts established precedent and represents an outdated legal basis. They stated, “The authority underlying his appointment as supported by longstanding precedent, in fact the legal basis for his appointment is a vestigial holdover of a bygone jurisprudential era.”

Defense Attorneys Question Authority

Trump’s defense attorneys also highlighted in their motion that Smith, lacking Senate confirmation, does not have the prosecutorial power bestowed upon him. They argue, “The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power.”

Smith’s team, however, has defended the validity of his appointment and its consistency with the appointments clause, asserting that Congress has duly funded his role.

Judge Cannon's Impact on Trial Timeline

Cannon, who has faced both praise and criticism for her methodical approach, is managing pretrial motions and hearings. Her decisions might delay Trump's trial until after the upcoming presidential election. The initial trial, involving 40 charges related to national defense information, was set for May 2024 but delayed.

Additional hearings scheduled by Judge Cannon, beginning Monday, will cover various pretrial matters. One such hearing will consider Smith's request to modify Trump’s release conditions. Specifically, Smith seeks to limit Trump’s public statements concerning law enforcement personnel involved in the case.

Concerns Over Trump’s Statements

Smith's request for modifying release conditions came after Trump alleged that President Joe Biden orchestrated a plot to assassinate him. Trump based this allegation on FBI warrant documents from the search of Mar-a-Lago in 2022.

Bradley Moss, a national security attorney, criticized Judge Cannon's extended handling of pretrial issues. He emphasized that the matter of special counsel appointment authority should have been resolved based on submitted documents, without requiring lengthy hearings.

"Judge Cannon continues to go well beyond what is typical or necessary in a criminal matter for addressing pretrial options," Moss explained. "This can and should have been resolved weeks ago on the papers alone."

Upcoming Hearings and Trial Implications

With the hearing on Friday and subsequent sessions lined up, Judge Cannon’s decisions are pivotal.

The possibility of postponing Trump's trial until after the presidential election looms large, potentially influencing the political landscape.


The scheduled hearing in Florida will focus on Trump’s request to dismiss the classified documents case on grounds of Jack Smith's allegedly unlawful appointment.

Judge Cannon’s pretrial management has prompted mixed reactions and could delay the trial past the presidential election.

Trump’s defense emphasizes constitutional breaches, supported by notable legal scholars, while Smith’s team defends the legality of his role. The unfolding events promise significant legal and political implications.