First day of hearings in Trump classified documents case come to a close

Trump's defense is looking to dismiss the classified documents case.

The first day of a hearing into the lawfulness of special counsel Jack Smith's appointment in the investigation of former President Trump's classified document handling ended around 2:30 p.m. on Friday.

No decision was made on the motion to dismiss or the legality of the appointment.

The court heard arguments from the defense and prosecution as well as constitutional lawyers supporting either side's analysis.

Prior to concluding for the day, U.S. District Judge Aileen Cannon heard an argument from a lawyer backing up the Trump defense team's claims.

Josh Blackman with Landmark Legal Foundation explained that Smith did not wield the proper authority to exercise the powers he currently is.

The arguments were centered around whether the law authorizes the Department of Justice and Attorney General Merrick Garland to appoint a special counsel, such as Smith. The discussions during the hearing were policy-heavy, as each side sought to prove what is truly meant by the law and what authority is ultimately bestowed to Garland and Smith.

Fox News' Shona Holagh, Jake Gibson, and Kailey Schuyler contributed to this report.

Seligman argued on behalf of the DOJ.

Matthew Seligman, a constitutional lawyer and scholar, argued on behalf of the Department of Justice (DOJ) during the Friday hearing, pointing to one specific word in a statute that backs Attorney General Merrick Garland's appointment of Special Counsel Jack Smith in the classified documents case against former President Trump.

The word "appoint" is used in section 533, he pointed out to U.S. District Judge Aileen Cannon. This is significant, he explained, as ordinary employees are not installed via appointment. The word is used in the context of government officials, who are put in place by appointment.

According to Seligman, who is part of a group of constitutional lawyers that is called "Defenders of Democracy," the statute is abundantly clear in granting the attorney general with the authority to appoint such officials, or special counsels, to prosecute crimes in the U.S.

Thus, he said, Smith is lawfully in place as special counsel in the classified documents case.

Fox News' Shona Holagh, Jake Gibson, and Kailey Schuyler contributed to this report.

Former President Trump's legal team argued in court that Special Counsel Jack Smith was appointed unlawfully because DOJ Special Counsel regulations do not qualify as an authorization to appoint a Special Counsel. 

"The text of these statues can't be used to appoint an official...maybe an employee," Trump attorney Emil Bove told US District Court Judge Aileen Cannon.

Judge Cannon has been very active asking questions of both sides. Including asking Bove about the text of Section 533, "what is a special attorney or assistant? What is the difference?"

Bove argued that statute section 533 can't be used to appoint a special counsel and noted that it was also used in the appointment of Special Counsel Robert Hur, who declined to prosecute President Biden for his classified documents. 

Later, Bove suggested Special Counsel Jack Smith does not have a superior who is operating as oversight right now, saying Smith is a “free floating principal officer” rather than someone who is subject to the oversight of the Attorney General.

Fox News Digital's Jake Gibson contributed to this report

Trump's defense team claimed that statutes didn't provide the authority to appoint Smith.

Defense attorney for former President Trump, Emil Bove, used the phrase "shadow government" while arguing against the validity of Special Counsel Jack Smith's appointment in a Florida hearing on Friday.

Bove mentioned the term while describing a situation in which inferior officers, unconfirmed by the Senate, are put in power. "These are the risks we are running," he said.

The Trump defense team's argument in the hearing was that Smith's appointment by Attorney General Merrick Garland in 2022 was unlawful because the Department of Justice's special counsel regulations don't amount to an authorization to appoint a special counsel. 

Bove claimed, "The text of these statues can't be used to appoint an official... maybe an employee."

Due to the nature of his appointment, Bove explained Smith doesn't report to a superior who provides oversight, instead operating as a “free floating principal officer.”

Trump's team is making the case that because of the improper appointment, the entire classified documents case against the former president should be dismissed. Such a scenario is considered a long-shot, but U.S. District Judge Aileen Cannon seems to be giving the arguments serious consideration. She actively questioned lawyers on both sides throughout the first portion of the hearing.

Fox News' Shona Holagh, Jake Gibson, and Kailey Schuyler contributed to this report.

The Manhattan DA's Office has filed their formal opposition to former President Donald Trump's request to terminate the gag order against him.  The DA's office argue the purpose of the gag order was to protect certain participants from “'threatening, inflammatory, [and] denigrating' statements" by Trump, and that the order should remain in place.  

According to the court document, the DA's office continued that Trump has not exempt jurors "from his alarming rhetoric that he would have 'every right' to seek retribution as president against the participants in this trial as a consequence of his conviction because 'sometimes revenge can be justified.'” 

Prosecutors say Trump made references to the jurors as a group collectively. One example noted is when the former president said the jury was "95% Democrats."

The DA's office also says there is no reason to alter to lift the gag order before sentencing, as prosecutors and staff are still heavily involved in the case.

They say the DA's office has received nearly 500 threatening emails and phone calls since April 2024, including bomb threats at the homes of two people involved in the case on April 15, the first day of the trial. According to the document, "It includes a threatening post disclosing the home address of a DANY employee involved in this prosecution," and "an online post depicting sniper sights on people involved in this case or a family member of such a person," as well as other posts "directed to the District Attorney or DANY employees involved in this prosecution that 'we will kill you all'; that '[. . .] should be in witness protection'; and that 'Your life is done.'"

The DA's office does note the gag order no longer needs to apply to potential witnesses since the hush money case is over, but that "does not mean that defendant has carte blanche to resume his reprehensible practice of publicly attacking individuals involved in litigation against him."

The response comes after Trump asked Judge Juan Merchan on June 4 to lift the gag order that prevents him from speaking about witnesses, jurors and others associated with the case. 

Fox News' Maria Paronich contributed to this report.

Fulton County, Georgia, DA Fani Willis' "Hail Mary" court filing to halt a court appeal is "an obvious attempt" to prevent discovery of her "misconduct," according to attorneys for former President Trump.

Last week, Wills argued that the Fulton County Superior Court found there was no sufficient evidence to support their claims that she had a conflict of interest, saying there is "no basis" to appeal Judge Scott McAfee's March ruling allowing the Atlanta prosecutor to stay on the case.

However, in a legal filing Thursday, Trump attorneys told the Georgia Court of Appeals that "without citation to any applicable authority, the State filed this 'Hail Mary' motion to dismiss these meritorious appeals, accusing this Court of ‘improvidently’ granting interlocutory review. There is no proper procedural vehicle for the State to relitigate this Court’s sound decision to hear the merits." 

"President Trump has filed his response in opposition to the State’s meritless motion to dismiss the interlocutory appeal," Steve Sadow, lead counsel for Trump, said in a statement. "The Georgia Court of Appeals granted us the right to appeal after due and proper consideration. The State’s "Hail Mary" motion is an obvious attempt to stop appellate review of DA Willis’ misconduct."

Read the full report by Brianna Herlihy here.

Fox News contributor Andy McCarthy claimed the New York Times is deceptively covering U.S. District Judge Aileen Cannon's decision to allow a hearing into the legality of Special Counsel Jack Smith's appointment in the investigation into former President Trump's alleged mishandling of classified documents.

"I think its deceptive coverage ," he remarked on Fox News' America's Newsroom.

Coverage from the New York Times has described the Trump-appointed judge's actions on pre-trial motions as slow.

However, McCarthy explained that there are grounds to question Smith's appointment and the arguments being made are not "frivolous."

"Prior independent counsels were appointed under a congressional statute," he noted.

"Either the person has to be nominated by the president and confirmed by the senate or has to occupy a position that congress has established by law," McCarthy described.

"So this actually is a pretty novel and important argument," he said of Smith's being appointed as special counsel by Attorney General Merrick Garland when he was a private citizen.

A hearing has begun in Trump's Florida classified documents case focusing on the validity of Jack Smith serving as a special prosecutor in the case. 

In December, former Reagan administration Attorney General Edwin Meese filed an amicus brief with the Supreme Court arguing that Smith’s appointment as special counsel was unlawful and therefore he can’t prosecute Trump. 

Attorney General Merrick Garland appointed Smith to the position when he was working as a private citizen, with Meese arguing he should have been selected by the president, then confirmed by the Senate, and working within the Justice Department to serve as special counsel. 

Judge Aileen Cannon will hear from a handful of experts not directly involved in the case regarding the argument Smith is unqualified to serve as special counsel, including from Meese. 

The hearing comes after Trump’s trial in the case was delayed as Cannon works through a bevy of motions to dismiss the case. 

The FBI seized 33 boxes of documents in August 2022 from Trump’s Mar-a-Lago estate in Florida. Trump was charged with 40 felony counts, including allegedly violating the Espionage Act, making false statements to investigators and conspiracy to obstruct justice. 

Trump has pleaded not guilty.

POLITICS

Red states ask court to stop Jack Smith's gag order against Trump in Florida documents case

A group of 24 Republican state attorneys general have filed an amicus brief in Trump's classified documents case asking a Florida court to not grant Jack Smith's gag order request.

A group of 24 Republican state attorneys general filed an amicus brief on Monday in former President Trump's classified documents case, asking a Florida court not to grant special counsel Jack Smith's gag order request, calling it "presumptively unconstitutional."

"Free and fair elections in the United States depend on candidates’ ability to speak about important issues of the day. Attempts to stop a candidate from speaking out harm more than just the candidate. They also hurt the voters, who are denied access to crucial information, and the States, which are responsible for managing elections," the amicus brief filed Monday in the Southern District of Florida stated. 

"And when agents of one candidate seek a court order to muzzle discussion on matters relating to important electoral issues, that restraint raises even more fundamental First Amendment concerns," the brief said. 

Led by Iowa Attorney General Brenna Bird, the group of top state prosecutors argue that "[e]ach branch of government, even the judiciary, should be cautious about abridging core political speech—especially core political speech relating to a presidential election. 

"Unfortunately, the special prosecutor’s request here does not reflect that caution," the brief states. 

Click here to read more at FoxNews.com.

Todd Blanche and Donald Trump

Chris Kise and Todd Blanche are the lead attorneys for former President Donald Trump in his classified documents case in Florida.

Kise, former Florida Solicitor General, joined Trump’s team in August 2022.

Kise, a graduate of Florida State University College of Law, most recently worked for the law firm Foley & Lardner. As solicitor general, he successfully represented Florida when arguing cases before the Supreme Court.

Blanche, who also represented Trump in N.Y v. Trump, is a former federal prosecutor and top white-collar criminal defense attorney, working on cases dealing with wire fraud, public corruption, and racketeering.

Blanche has completed two ironman triathlons. He worked at law firms WilmerHale and Cadwalader, Wickersham & Taft before representing the former president.

He also represented Paul Manafort and Igor Fruman. He is a graduate of Brooklyn Law School. He’s married to a medical doctor.

President Biden and former President Trump (AP Photo/Julia Nikhinson and Evan Vucci)

Former President Trump's legal issues have not stopped his presidential campaign from raking in cash.

The Trump campaign announced two and a half weeks ago that they and the RNC, fueled in part by the former president's guilty verdicts in his New York criminal trial, combined hauled in a stunning $141 million in fundraising in May.

That was up from the $76 million they raised in April when they topped President Biden and the Democratic National Committee for the first time in their 2024 election rematch. 

The Biden campaign and the DNC on Thursday announced they raised a combined $85 million in May, which was their second-best month of fundraising this cycle. 

In announcing their May fundraising figures on Thursday evening, the Biden campaign also highlighted that they had a massive $212 million cash-on-hand as of the end of May. 

"Our strong and consistent fundraising program grew by millions of people in May, a clear sign of strong and growing enthusiasm for the President and Vice President every single month," Biden campaign manager Julie Chavez Rodriguez said in a statement. 

Fox News Digital's Paul Steinhauser contributed to this update.

This image, contained in the indictment against former President Donald Trump, shows boxes of records stored in a bathroom and shower in the Lake Room at Trump's Mar-a-Lago estate in Palm Beach, Fla. The classified documents investigation of Donald Trump appeared to have clear momentum in 2022 when FBI agents who searched the former president’s Mar-a-Lago estate recovered dozens of boxes containing sensitive documents. But each passing day brings mounting doubts that the case can reach trial this year. The judge has yet to set a firm trial date despite holding two hours-long hearings with lawyers this month. (Justice Department via Associated Press)

The hearing on a motion to dismiss former President Trump's classified documents case will begin at 9:30 a.m. on Friday, according to a recent order from US District Judge Aileen Cannon.

Cannon will hear arguments from Trump's legal team that Special Counsel Jack Smith's appointment was unlawful. The defense and the government, as well as three other lawyers, or "friends of the court," are expected to make arguments. Two are arguing for Trump's position and one on the side of the government. 

These arguments could go on for several hours. 

It is possible that the judge could issue a ruling from the bench today, but she is more likely to issue a written order in the coming days. 

“The Court anticipates starting with argument from counsel for the parties; proceeding to hear argument from amici and rebuttal from the parties as necessary; and then accommodating any presentation of evidence, if deemed necessary by the Court, following review of the supplemental briefs on the need for further factual development," Cannon wrote in her order.

Former President Trump is facing 40 federal charges over allegations connected to his handling of classified materials after leaving the White House. Documents which were later seized by the FBI from his Mar-a-Lago estate in Palm Beach, Florida. Trump is also accused of obstructing efforts by federal law enforcement to return the documents. 

The former president has plead not guilty to all charges.

Fox News' Jake Gibson contributed to this update.

Former President Donald Trump and Special Counsel Jack Smith (Getty Images)

The judge presiding over former President Donald Trump’s classified documents case in Florida is set to hold a hearing Friday focusing on the validity of Jack Smith serving as a special prosecutor in the case. 

In December, former Reagan administration Attorney General Edwin Meese filed an amicus brief with the Supreme Court arguing that Smith’s appointment as special counsel was unlawful and therefore he can’t prosecute Trump . Attorney General Merrick Garland appointed Smith to the position when he was working as a private citizen, with Meese arguing he should have been selected by the president, then confirmed by the Senate, and working within the Justice Department to serve as special counsel. 

Judge Aileen Cannon will hear from a handful of experts not directly involved in the case regarding the argument Smith is unqualified to serve as special counsel, including from Meese. 

The hearing comes after Trump’s trial in the case was delayed as Cannon works through a bevy of motions to dismiss the case. 

The FBI seized 33 boxes of documents in August 2022 from Trump’s Mar-a-Lago estate in Florida. Trump was charged with 40 felony counts, including allegedly violating the Espionage Act, making false statements to investigators and conspiracy to obstruct justice. 

Trump has pleaded not guilty.

Republican state officials came out in full force against special counsel Jack Smith’s request that former President Donald Trump be subjected to a gag order in the classified documents case. 

"Free and fair elections in the United States depend on candidates’ ability to speak about important issues of the day. Attempts to stop a candidate from speaking out harm more than just the candidate. They also hurt the voters, who are denied access to crucial information, and the states, which are responsible for managing elections," a group of 24 Republican state attorneys general wrote in an amicus brief this month. 

Smith's prosecution team filed a motion last month requesting the judge presiding over Trump’s classified documents case in Florida , Aileen Cannon, prohibit Trump from making comments that "pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case."

The motion comes after FBI agents seized 33 boxes of documents related to Trump’s presidency in August 2022 from his Mar-a-Lago estate in Florida. Trump was charged with 40 felony counts, including allegedly violating the Espionage Act, making false statements to investigators and conspiracy to obstruct justice. 

Trump has pleaded not guilty to the charges.

Earlier this month, U.S. District Judge Aileen Cannon denied a motion to dismiss some of the charges in former President Trump's indictment for holding on to classified documents.

Trump’s legal team had sought to throw out more than a half dozen of the 41 counts in the indictment, which accuses the former commander in chief of illegally hoarding classified documents from his presidency and conspiring with others to conceal sensitive files from the federal government. 

The defendants had challenged counts related to obstruction and false statements, but Cannon issued an order on June 10 saying 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."

Cannon did, however, agree to strike down a paragraph from the indictment that defense lawyers argued was prejudicial information that was not essential to the underlying charges.

Cannon has rejected multiple other motions already to dismiss the case, including one that suggested that the Presidential Records Act authorized Trump to keep the documents with him after he left the White House and to designate them as his personal files.

Fox News Digital's Bradford Betz and the Associated Press contributed to this report.

Federal Judge Aileen Cannon. (US Courts)

Federal District Court Judge Aileen M. Cannon, a Trump appointee, was assigned to oversee the criminal case against the former president and presumptive Republican presidential nominee Donald Trump for his handling of classified documents at Mar-a-Lago.

Cannon was born in Colombia in 1981 and came to the U.S. as a child, growing up in Miami. She earned her undergraduate degree at Duke University and her law degree at the University of Michigan School of Law.

According to her application to serve as a federal judge, Cannon worked in several law firms and served as a law clerk for the U.S. Court of Appeals for the Eighth Circuit in Des Moines, Iowa.

She started serving as an assistant U.S. attorney in Fort Pierce in 2013 until her appointment in 2020.

Cannon became a member of the Federalist Society in 2005 and said she was a current member on her application. The conservative legal organization has championed judges appointed by Trump, including Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Cannon said in her application that she was first approached by Sen. Marco Rubio, R-Fla., about applying for the judicial vacancy in the Southern District of Florida, and after a series of interviews was informed by the White House nine months later that she was being considered for the nomination.

Fox News’ Jessica Chasmar contributed to this report.

The schedule for former President Trump's classified documents case — and his upcoming sentencing hearing for his criminal conviction in New York — bumps up against Trump's formal nomination for president. 

U.S. District Judge Aileen Cannon scheduled an additional hearing from June 24 to 26 and set deadlines for disclosures from the special counsel for early July and the defendants’ speedy trial report for July 19 — the final day of the Republican National Convention.

Trump is set to be sentenced in Manhattan after being found guilty on all counts in New York v. Trump, stemming from District Attorney Alvin Bragg’s investigation on July 11, just four days before the RNC convention begins. 

Cannon scheduled a status conference for July 22 and another hearing for later that day.

Cannon did not schedule a new trial date.

The Republican National Convention will run from July 15 to 18 in Milwaukee, Wisconsin. 

Fox News Digital's Brooke Singman contributed to this update.

Special Prosecutor Jack Smith walks away after addressing reporters after his grand jury has issued more indictments of former President Donald Trump in Washington, DC. (Photo by Bill O'Leary/The Washington Post via Getty Images)

Jack Smith is the U.S. special counsel who is leading the investigation against former President Trump regarding his alleged taking and storing of classified documents and alleged attempts to interfere with the 2020 federal election. 

Smith is a former prosecutor who worked for several years in the U.S. Attorney's Office in Brooklyn, New York. Afterward, he spent time overseeing prosecutions for war crimes at the International Criminal Court (ICC) in The Hague. In 2010, he took on a role in the Department of Justice (DOJ) leading its Public Integrity Section up until 2015. 

He was ultimately appointed by Attorney General Merrick Garland in 2022 to the post of special counsel overseeing the Trump investigation. Since his appointment, Smith has managed to secure two different indictments against the former president, accounting for two of Trump’s four total criminal cases. 

Prosecutors who worked alongside the special counsel characterized him as relentless and aggressive in pursuing his cases. "If the case is prosecutable, he will do it," former colleague Mark Lesko, an attorney at the firm Greenberg Traurig LLP, said of him. 

Attorney General Merrick Garland defended his appointment of Special Counsel Jack Smith earlier this month during a hearing on Capitol Hill. 

Rep. Thomas Massie, R-Ky., grilled Garland on June 4 on whether Smith's appointment was unconstitutional, as former Attorney General Ed Meese and others have argued.

"What gives you the authority to appoint a special counsel to create…you've created an office in the U.S. government that does not exist without authorization from Congress," Massie posed to Garland. 

Garland responded to Massie that, "there are regulations under which the Attorney General appoint Special Counsel, they have been in effect for 30 years, maybe longer, under both parties. The matter that you're talking about, about whether somebody can have an employee of the Justice Department serve as special counsel has been adjudicated," he said. 

Garland argued that special counsel appointments that he and other AGs, including Attorney General William Barr, have made cite a regulation that points to a statute. 

Meese, however, in his briefs filed in several points in the Trump cases, argued that "none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel."

"Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel," the former AG wrote. 

Fox News Digital's Brianna Herlihy contributed to this update.

U.S. President Donald Trump (L) congratulates former Attorney General Edwin Meese after awarding him the National Medal of Freedom during a ceremony in the Oval Office at the White House October 08, 2019 in Washington, DC. (Chip Somodevilla/Getty Images)

Former Attorney General Ed Meese, who served under former President Reagan, filed an amicus brief in Trump's case, in which he argues that Attorney General Merrick Garland’s appointment of Jack Smith as special counsel — a private citizen at the time — is in violation of the appointments clause of the Constitution. 

Garland appointed Smith as special counsel on Nov. 18, 2022 – just days after Trump announced he would run for president in 2024. 

"Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor," the brief states. 

"Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos," they argued. 

Meese argues that the "illegality" of Smith’s appointment is "sufficient to sink Smith’s petition, and the Court should deny review." 

Presenting arguments on June 21 in Florida on behalf of Meese will be Gene Schaerr; Josh Blackman on behalf of Professor Seth Barrett Tillman; and Matthew Seligman on behalf of constitutional lawyers, former government officials, and "State Democracy Defenders Action."

The judge presiding over former President Trump's classified records case is holding a hearing Friday to consider whether the appointment of U.S. Special Counsel Jack Smith and the funding of his investigations is "unlawful."

Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida had postponed the trial stemming from Smith’s investigation into Trump’s alleged improper retention of classified records indefinitely. 

Upon postponing the trial, Cannon scheduled deadlines for reports on June 10 and 17 and a nonevidentiary hearing on a motion to dismiss on Friday, "based on unlawful appointment and funding of special counsel." 

Cannon expanded Friday's hearing to allow amici to argue before the court, as well as Trump defense attorneys and federal prosecutors. 

Trump faces charges related to his possession of classified materials. He pleaded not guilty to all 37 felony counts from Smith’s probe, including willful retention of national defense information, conspiracy to obstruct justice and false statements.

Trump was also charged with an additional three counts as part of a superseding indictment from the investigation – an additional count of willful retention of national defense information and two additional obstruction counts.

He has pleaded not guilty. 

Fox News Digital's Brooke Singman contributed to this update.