FORT PIERCE, Fla. — Proceedings before U.S. District Judge Aileen Cannon in the U.S. government’s classified documents case against former President Donald Trump Friday morning sounded more like a law school colloquium than a defense-prosecution hearing on a motion to dismiss.
Emil Bove, a former prosecutor in the U.S. attorney’s office for the Southern District of New York, carried the arguments for the defense, emphasizing that there is no statute that allowed Special Counsel Jack Smith to be appointed to investigate the reports from the National Archives that Trump had potentially classified papers at his Mar-a-Lago estate in Palm Beach.
The discussion on Friday veered from the question of who acts as Smith’s boss to decades-old precedents involving previous special prosecutors. At one point, Bove claimed that the Justice Department could in essence create a “shadow government” through appointment of special counsels.
Smith’s team has maintained that Attorney General Merrick Garland, as head of the U.S. Justice Department, was empowered to appoint Smith and to delegate prosecutorial decisions to him.
Besides prosecutors working for the government and attorneys arguing for Trump and co-defendants Waltine Nauta and Carlos De Oliveira, a lineup of third-party lawyers will appear in a federal courtroom in Fort Pierce to discuss the constitutionality of Smith’s appointment to take the former president to court over his alleged mishandling of classified documents and efforts to block the government from retrieving them.
It’s a question that many critics believe should have been disposed of quickly months ago by the judge, who was reportedly asked by two other Southern District of Florida judges to step aside from the case in favor of a more experienced jurist. Cannon was said to have rejected the suggestions, according to anonymous attorneys quoted by The New York Times.
The daylong hearing on Friday at the Alto Lee Adams Sr. United States Courthouse focuses on arguments similar to those rejected by other judges in challenges to special counsels Mueller, who investigated Trump’s relationship with Russia, and David Weiss, who has been prosecuting President Joe Biden’s son, Hunter, on gun and tax charges.
On Monday, Cannon is scheduled to hear a related defense challenge of Smith with the focus on the funding of his office. That question, too, has failed to gain traction with other judges.
On Tuesday, Cannon is scheduled to hear arguments on whether a federal judge in Washington, D.C. improperly allowed testimony from onetime Trump lawyer Evan Corcoran, under a crime-fraud exception to attorney-client privilege. Smith has alleged Trump misled the lawyer during his bid to obstruct the government’s investigation.
Trump has pleaded not guilty first to a 37-count indictment handed up last June and again to additional charges in a superseding indictment returned later. His co-defendants, Nauta, a personal valet, and De Oliveira, a Mar-a-Lago property manager, also have pleaded not guilty.
Critics of the judge assert that Cannon has effectively bought into a defense strategy of delaying a trial until after the November presidential election. She has conducted lengthy hearings on issues, they say, that most other judges would have quickly ruled upon after reviewing written motions filed with the court.
Instead, Cannon canceled a May 20 start date for a trial, declaring there is a myriad of pretrial issues to decide including more than a half dozen motions to dismiss, as well as a variety of disputes between Trump’s lawyers and the prosecutors over the handling of classified documents at trial.
Recently, the judge has rejected some dismissal motions, saying it is too early in the proceedings to consider them, or more appropriately presented as jury instructions.
The defense had challenged counts related to obstruction and false statements that they said were duplicative and prejudicial. But Cannon said in an order that “the identified deficiencies, even if generating some arguable confusion, are either permitted by law, raise evidentiary challenges not appropriate for disposition at this juncture, and/or do not require dismissal even if technically deficient, so long as the jury is instructed appropriately and presented with adequate verdict forms as to each Defendants’ alleged conduct.”
Previously the judge rejected other motions to dismiss, including one that suggested that Trump was authorized under the Presidential Records Act to keep the documents with him after he left the White House in 2021 and to designate them as his own.
Still, there are more third parties headed for Fort Pierce to opine on other issues, the latest being the government’s motion to impose a gag order against Trump from denouncing FBI agents in public over their search for documents at his Mar-a-Lago estate in Palm Beach.
Late Thursday, Cannon green-lighted a filing backing Trump by America First Legal, a Washington-based nonprofit foundation headed by former West Wing senior adviser Stephen Miller.
The foundation said in a filing with the court that it “has a special interest in protecting First Amendment liberties like those at issue in this case.”
“Most importantly,” the foundation added, the foundation “writes to protect the freedom of a major party presidential candidate in the upcoming election to speak freely on matters affecting politics and government — core areas of First Amendment expression.”
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