Judge Aileen Cannon pushes Trump’s lawyer to defend claim that special counsel is part of a ‘shadow government’

Fort Pierce, Florida (CNN) — One day after it was reported that two federal judges urged Judge Aileen Cannon not to oversee the classified documents case against Donald Trump, three days of hearings began that could determine the future of the charges against the former president.

Trump is arguing that Jack Smith – who has brought charges against Trump in Florida and Washington, DC – was unlawfully appointed as special counsel.

At the center of Trump’s argument is the claim that the Attorney General Merrick Garland does not have legal authority to appoint someone as special counsel who hasn’t confirmed by the Senate. The Justice Department says the attorney general has ample authority to appoint “inferior officers,” which would include special counsels.

Cannon, prepared with question after question for both the defense attorney and prosecutors, on Friday pushed Trump’s lawyer to defend his claim that Smith’s position amounted to a “shadow government.”

“That sounds very ominous,” Cannon said to Trump attorney Emil Bove. “But what do you really mean?”

Bove did not directly answer the question, but repeated the argument that Smith was inappropriately appointed. He also said that there should be an additional hearing over the issue, which could include testimony about the relationship between Garland and Smith, arguing that the two have said Smith is acting independently and not under the direction of Garland.

Cannon noted there is a regulatory system that Smith must still adhere to – to which Bove retorted that Smith still wasn’t reporting to anyone.

Prosecutor James Pearce, during his arguments in the morning, said that Garland “could, this very moment” fire Smith, but added later that Garland did not review all of Smith’s decisions.

Trump’s attempt to nullify the special counsel’s office’s work is an anomaly among recent efforts from other defendants in different federal courts to do the same, because Cannon is giving far more time to weigh the challenge than other judges have in recent years.

The judge is allowing for several hours of questioning about the authority of the special counsel’s office, which is at work in federal court cases around the country, as Republican-led attacks of the Justice Department’s special counsel appointments gain steam on Capitol Hill and in legal circles.

The hearing in the Fort Pierce courtroom where Cannon presides is just the start of a three-day excursion into legal arguments around the case, including over prosecutors’ request for a gag order against Trump as well as an argument that the special counsel is being unlawfully funded.

Cannon’s handling of the Trump case has been closely watched , as critics say she is taking too long to settle legal challenges from the former president, aiding his quest to delay any trial past the November election.

The New York Times reported Thursday that two federal judges in south Florida, including the district’s chief judge, urged Cannon to forgo overseeing the criminal prosecution when she was first assigned the classified documents case in 2023.

Cannon allows non-parties to argue in rare move

In addition to granting the hearing on the legitimacy of Smith’s office, attorneys representing non-profit groups and former government officials will join the in-person debate Friday, having been allowed by Cannon to file their own arguments on the matter. It is very unusual for outside parties to be given argument time like this, especially in a criminal case at the trial level.

In one filing in support of Trump’s motion to toss the case, attorneys for a former attorney general and the right-wing nonprofit Citizens United wrote that because of his appointment outside of the Senate’s review, Smith “is thus one of the most powerful officials in the entire United States Government.”

“By pursuing a former President of the United States who is currently the leading candidate to become the next President of the United States,” the group wrote, “Smith’s prosecution here shows that he wields the power to profoundly alter the trajectory of a presidential election, and with it the destiny of the Nation.”

Another group that will also be allowed to make oral arguments says that in order for an individual to be qualified as special counsel under the Justice Department, they would need to be a permanent employee, which Smith is not.

In support of Smith and his appointment as special counsel, attorneys representing the nonprofit State Democracy Defenders and others argued in their own filing that the constitution differentiates between “principle” and “inferior” officers, allowing the AG to appoint the latter.

“This Court should hold as a matter of law that the Attorney General lawfully appointed the Special Counsel,” the attorneys wrote.

The attorneys who will argue the case against Smith’s appointment are Josh Blackman and Gene Schaerr, while Matthew Seligman will argue against Trump’s motion.

“In the past I’ve asked for it and have not been granted it,” Blackman told CNN when asked about the uniqueness of a judge allowing third parties to join arguments in a criminal case, adding that he was “grateful for the chance to argue.”

In his two federal cases, attorneys for Hunter Biden also argued the indictments against him should have been dismissed because the special counsel overseeing the cases was, they argued, unlawfully appointed.

Almost inverse from Trump, Biden argued that special counsel David Weiss was unlawfully appointed because he was already in the federal government and therefore not fully independent.

His motions for dismissal were struck down by the two judges overseeing his cases.

This story has been updated with additional developments.

The-CNN-Wire

™ & © 2024 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.