Prosecutors state their case in Trump classified documents case in Florida

This combination of pictures created on August 5, 2023 shows special counsel Jack Smith in Washington, D.C., on Aug. 1, 2023 and former President Donald Trump in Palm Beach, Fla., on Nov. 8, 2022./Photo by SAUL LOEBEVA MARIE UZCATEGUI/AFP via Getty Images

The second day of hearings on motions from both the defense and prosecution in former President Trump's classified documents case in Florida ended Monday evening shortly after 5:30 p.m.

Two issues were considered during the day's hearings: Special Counsel Jack Smith's funding for the case and its legality and a potential added provision to Trump's release conditions to limit some of his speech regarding the raid of his Mar-a-Lago estate. 

U.S. District Judge Aileen Cannon questioned Department of Justice prosecutor James Pearce about his argument that there are indefinite appropriations legally made available to the special counsel. Cannon prodded him over the "limitless appropriations," to which he provided several examples of similar instances in the U.S. Code. Pearce also noted that eight other special counsels were funded in the same manner, potentially hinting that her ruling could have far-reaching implications in other matters.

Later in the day, the court heard arguments both for and against what amounts to an informal and limited gag order on Trump as a modification to his release conditions. 

DOJ prosecutor David Harbach was rebuked by Cannon for his tone, and warned to act within the court's decorum. He argued that the speech restriction on Trump was necessary because of the connection between the former president's statements and the actions of some supporters. He also claimed that the names of FBI agents involved in the Mar-a-Lago raid had been made public, putting them in danger. 

Court resumes Tuesday morning with a sealed hearing at 11 a.m. and an open hearing at 1 p.m. 

The second hearing in former President Donald Trump's classified documents case began Monday afternoon and will focus on a request from Smith's team to U.S. District Judge Aileen Cannon of the Southern District of Florida to alter Trump's release conditions.

The prosecution aims to impose speech restrictions on the former president following his remarks regarding the FBI's raid on his Mar-a-Lago property. Trump's description of the raid, including statements suggesting the FBI was "locked and loaded and ready to take me out," led Smith's counsel to allege it could put law enforcement in danger.

U.S. Special Counsel Jack Smith is in attendance at the courthouse in Florida for the Monday hearing into motions regarding his appointment to former President Trump's classified documents case.

Monday's first hearing ended around 11:45 a.m. and featured an appearance from Smith and arguments from former President Trump's defense attorney Emil Bove.

The court considered a motion from Trump's defense team to dismiss the classified documents case entirely due to what they claimed is "unlawful funding" of the appointed special counsel.

Bove contended that the funds utilized by Smith's team lack statutory authorization, presenting a separation of powers concern due to the special counsel's purported ability to access an unlimited budget for prosecuting Trump.

Former Deputy Assistant Attorney General Tom Dupree says the FBI released a statement saying that the language used in the search warrant for former President Donald Trump's Mar-a-Lago property in 2022 was standard protocol, Fox News' Jeff Paul reported Monday.

"Very similar, if not identical language appeared in the search warrant that the FBI executed when they looked into President Biden's home in Delaware," Dupree said on America Reports. "So I do not think it is accurate to suggest that the FBI came to Mar a Lago with the intent to assassinate President Trump. I don't think that is accurate."

Trump previously said in a fundraising email that the FBI "came locked and loaded and ready to take me out," which prosecutors cite as potentially causing harm to law enforcement personnel.

The second part of the hearing is scheduled to begin Monday afternoon, which will pertain to Jack Smith's counsel seeking a modification of the terms on Trump's release to include speech restrictions.

Trump has formal gag orders in two other cases.

An informal gag order being considered during a second Monday hearing in the classified documents case against former President Trump would join several other such restrictions in his separate criminal cases if implemented.

The hearing, beginning at 3:00 p.m., will feature arguments into whether Trump's conditions of release should be modified and expanded to some of his speech. Special Counsel Jack Smith's team made the motion to prevent the former president from making remarks about the FBI's raid at his Mar-a-Lago property, specifically regarding the authorized use of force.

The prosecution has pointed to language claiming the FBI agents were "locked and loaded and ready to take me out," suggesting the potential of it to endanger law enforcement officers.

They have noted that the authorized use of force is routine and is the same that was authorized for a similar seizure of classified documents at President Biden's home.

If U.S. District Judge Aileen Cannon for the Southern District of Florida were to rule in favor of Smith's team and implement such a restriction as part of Trump's release conditions, the former president would be under some level of speech limitation in all of his four criminal cases.

Trump faces a formal gag order in his Manhattan trial, wherein he was found guilty of 34 counts of falsifying business records last month. This gag order remains in place ahead of his sentencing next month. Additionally, a formal gag order was imposed on Trump last year in his federal election interference case, handed down by Judge Tanya Chutkan. The order restricts Trump from publicly commenting on and targeting prosecutors, court employees, or any potential witnesses.

In his Georgia election interference case, Trump does not have a formal gag order. He is prevented from communicating with any witnesses or co-defendants about the case as outlined in his bond agreement. He is also restricted from making any direct or indirect threats against co-defendants, witnesses, the community, or victims, which extends to his social media.

Fox News' Kailey Schuyler and Jake Gibson contributed to this post.

Cannon questioned the prosecution over its funding.

U.S. District Judge Aileen Cannon for the Southern District of Florida questioned Special Counsel Jack Smith's team on Monday about "limitless funding" for the prosecution effort against former President Trump.

“So is it really nine million?” Cannon asked Department of Justice (DOJ) prosecutor James Pearce, referencing Smith's team spending $5.4 Million between November of 2022 and March of 2023 and the DOJ’s components supporting their office spending an additional $3.8 million.

Pearce was not sure and offered to get the court an answer. “I think it would be helpful… it’s a public document,” said Cannon, adding “for the amount of money being spent.”

“If you have a problem with the funding… I think there should be supplemental briefing," Pearce said at one point, seeming to suggest Cannon was agreeing with Trump's defense team.

“I’m not indicating anything,” she replied.

During the hearing, Pearce was asked to give more examples of "limitless appropriations" being authorized, in response to which he pointed to multiple instances in the U.S. code. He noted that one example authorizes the refunding of moneys improperly deposited into the US treasury and another authorizes the payment of judgements.

Pearce made a point of noting that eight other special counsels were funded in the same manner, seeming to hint that finding that unlawful now would be very disruptive.

The DOJ prosecutor pushed back when he was prodded by Cannon on the potential constitutional implications of indefinite funding and where it is derived from. According to him, it is “not a hill I feel inclined to die on.”

Pearce also made the case for why, even if the funding was not lawful, the case against Trump should not be dismissed. He explained that the DOJ would provide alternative funding for the office in such a scenario.

But Trump's defense attorney Emil Bove hit back at this, claiming the only remedy would be to throw out the case if the funding is determined to be unlawful.

“This is a very specific Special Counsel taking very specific actions,” he explained, adding Trump is “aggrieved.”

“Dismissal is appropriate,” he said.

Ahead of the morning hearing's close, Bove seemed to preview what will be heard during the afternoon hearing, telling Cannon “more oversight from congress is required” for the “extraordinary things going on in this prosecution.”

In the 3:00 p.m. hearing, a potential gag order stipulation being added to Trump's release conditions will be considered. Per Bove, it is “extraordinary” for the government to attempt to “gag” Trump’s speech at a “debate” or on the “campaign trail.”

Bove asked, “Who authorized that… the Attorney General?”

Fox News' Kailey Schuyler and Jake Gibson contributed to this post.

Fox News contributor and former NYPD inspector Paul Mauro emphasized what he said was a significant constitutional matter at question in the motions being considered in former President Trump's classified documents case in Florida.

“This is a serious constitutional issue related to separation of powers," he remarked, referencing the government's appointment of special counsel Jack Smith in the case and whether it was lawful.

"Realistically a special prosecutor ... has to appointed by the president and confirmed under advice and consent of the Senate or the second way is by statute. In this case, you have neither," he said.

This is exactly what Trump's defense team has argued in multiple motions as they seek to have Smith removed and the case thrown out.

Mauro explained, "It's just a hole essentially in our system that has to be repaired."

He further pushed back on critics that suggested the case was an outlier, noting, "strangely, this case actually punches even above the weight of the Donald Trump status because this is a constitutional issue that will affect things going forward."

The Appointments clause in the Constitution requires that all presidential appointees at the levels of ambassador, consuls, judges and officers in the U.S. be subject to the “advice and consent” of the U.S. Senate.

The Supreme Court has ruled that there is a distinction between principal officers that should be subject to Senate confirmation, and inferior officers with whom appointment power can rest with the president.

The clause reads: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Fox News Digital's Charles Creitz contributed to this report.

Former President Donald Trump 's defense team argued that Special Counsel Jack Smith's office should not have been accessing the funds it currently uses from the outset. U.S. District Judge Aileen Cannon queried the defense about Trump's stake in the matter, to which Trump's defense lawyer, Emil Bove, cited the threat to liberty posed by Trump's potential conviction as justification for his standing.

Cannon raised concerns about the unauthorized nature of the funding, asking if that was the core issue, to which Bove affirmed.

Later, Cannon inquired if there was a cap on the funding, to which Bove indicated there was not, emphasizing the potential risks associated with unrestricted access to funds and suggesting the court should scrutinize this closely.

Bove further argued that the current setup represents a separation of powers issue, with the special counsel having unrestricted access to funds for prosecution purposes, which he believes warrants careful consideration by the court.

The next hearing will begin at 3:00 p.m. and focus on a motion from Smith's counsel seeking a modification of the terms on Trump's release to include speech restrictions.

Fox News' Claudia Kelly-Bazan contributed to this report.

Bove is Trump's defense attorney.

Monday's first hearing ended around 11:45 a.m. and featured an appearance from Special Counsel Jack Smith and argument from former President Trump's defense attorney Emil Bove.

The hearing began around 10:00 a.m. and the court considered a motion from Trump's defense team to dismiss the classified documents case entirely due to what they claimed is "unlawful funding" of the appointed special counsel.

Bove argued that the funding being used by Smith's team isn't authorized by statute and poses a separation of powers issue as the special counsel is able to access an allegedly infinite amount of money to pursue Trump.

The next hearing of the day will begin at 3:00 p.m. and the topic will be a motion from the prosecution, in which Smith's team asks U.S. District Judge Aileen Cannon for the Southern District of Florida to modify the conditions of Trump's release.

The government is seeking to have the conditions of the former president's release changed to include restrictions on his speech. In particular, the prosecution is concerned about Trump's description of the FBI's raid of his Mar-a-Lago property. Language claiming the FBI was "locked and loaded and ready to take me out" has been used, which Smith's team is claiming could put law enforcement in danger.

They have noted that the authorized use of force for the Mar-a-Lago raid is routine and was also used for the seizure of classified documents at President Biden's home.

Fox News' Claudia Kelly-Bazan, Kailey Schuyler and Jake Gibson contributed to this post.

While former President Donald Trump is trying to get this case tossed out, former Assistant U.S. Attorney Andy McCarthy says "it's a very substantial argument" that special Counsel Jack Smith was unlawfully appointed by Merrick Garland in 2022, pointing to an "appointments clause, which is the constitutional provision that controls appointments of this kind."

McCarthy said there are two primary requirements for the clause to be employed, first that the position must be established by law, with Congress setting forth the qualifications and often requiring Senate's passage. Secondly, for major offices known as principal officers in the U.S., nomination by the president and confirmation by the Senate are mandatory. 

The prosecution contends that Attorney General Merrick Garland indisputably holds the authority, backed by precedent, to oversee the special counsel. They argue that oversight in this case falls squarely under the Attorney General's purview.

"Attorney General Garland has said from the beginning that he doesn't supervise Jack Smith," McCarthy said. "The whole point of appointing Smith was to try to create some distance between President Biden and the Biden administration, including the Biden Justice Department, and the prosecutions of Trump. I've always thought that was a fiction, but the fact of the matter is the Attorney General has said he's not doing the very thing that the special counsel now says he is doing, which is overseeing Smith."

Smith was in attendance at the courthouse on Monday.

U.S. Special Counsel Jack Smith is in attendance at the courthouse in Florida for the Monday hearing into motions regarding his appointment to former President Trump's classified documents case.

Fox News was told the special counsel, appointed by Attorney General Merrick Garland in 2022, hasn't spoken. Smith is sitting behind the prosecution, not at its table, but also not in the gallery.

Smith was present as Trump defense attorney Emil Bove argued that the money being used by the special counsel's team should not have been accessible to him.

U.S. District Judge Aileen Cannon for the Southern District of Florida questioned Bove over the defense's standing in the argument, to which he replied Trump's stake in the matter is due to the threat to liberty posed by a potential conviction of the former president.

She further probed the argument, asking whether the issue is because the funding isn't authorized by statute. Bove confirmed her suggestion.

Part of the issue taken by Trump's defense is the special counsel's funding operating without a cap. Bove claimed its a problem of separation of powers that Smith and his team are using what amounts to an infinite budget to prosecute Trump.

Fox News' Claudia Kelly-Bazan, Kailey Schuyler and Jake Gibson contributed to this post.

House Judiciary Committee Chairman Jim Jordan, R-Ohio, proposed an appropriations package earlier this month that would "defund the lawfare activities" of state and federal prosecutors leading "politically sensitive investigations," referring to Special Counsel Jack Smith, Manhattan District Attorney Alvin Bragg and Fulton County District Attorney Fani Willis. 

Jordan's proposal followed Trump's recent conviction on 34 counts of falsifying business records, which were brought by District Attorney Bragg.

"The Committee on the Judiciary and its Select Subcommittee on the Weaponization of the Federal Government continue to conduct vigorous oversight over the Biden Administration in an effort to protect Americans’ fundamental freedoms," Jordan wrote.

Jordan played a key role last year in advancing reforms via the appropriations process, including "proposals to prohibit the funding of politically sensitive investigations, protect whistleblowers against retaliation, prevent taxpayer funds from being used to implement radical regulations, prohibit the funding of disastrous Biden immigration policies, and stop the funding of government censorship – among other proposals – which were included in Subcommittee or Full Committee-passed bills."

"We have seen rogue prosecutors abuse the rules of professional conduct and their duty to do justice in service of politicized ends," Jordan previously told Fox News Digital.

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

Former President Donald Trump's defense team will seek a limited gag order after Trump made comments that FBI agents were out to kill him and his family during their search of Mar a Lago in 2022, Fox News' Jeff Paul reported.

In a fundraiser email, Trump said the FBI was "locked and loaded ready to take me out and put my family in danger."

Special Counsel Jack Smith's legal team said the statement is false and endangers the lives of law enforcement, Paul reported.

"The judges basically have to draw a line and is not an easy line to draw, but they have to balance the need to protect the integrity of the proceedings and at the same time not violating the First Amendment rights of a former President and others," former Deputy Assistant Attorney General Tom Dupree said Monday morning on America's Newsroom. "It's not an easy task for a judge to do."

There could be a decision as early as today on the motion, which may result in an additional written gag order released by U.S. District Judge Aileen Cannon in the coming days.

The hearings began on Friday.

The second day of a hearing into whether Special Counsel Jack Smith's appointment is lawful and valid began around 10:00 a.m. on Monday.

The hearing, scheduled by U.S. District Judge Aileen Cannon for the Southern District of Florida, began on Friday.

During Monday's session, the court will hear from both the defense team for former President Trump and the government regarding the former's motion to dismiss the case in its entirety due to "unlawful funding" of Smith.

In the afternoon, arguments will be heard on the government's motion to change the conditions of Trump's release. After public statements by the former president critical of the FBI's "use of force" during the raid of his Mar-a-Lago property, Smith's team is seeking to have Trump's speech addressed in the conditions for his continued release.

The special counsel's team has pointed out the routine nature of the language Trump is referring to, also noting that it was included in the operation plan when the FBI went to President Biden's house to similarly seize classified documents.

Fox News was told the government is expected to argue Trump is distorting the situation, thereby putting law enforcement in potential danger.

Cannon, who has faced significant criticism over her actions in the case and her appointment by Trump, has denied a request to allow Trump-friendly America First Legal to present its own Amicus argument opposing the motion to change the former president's release conditions.

Fox News' Jake Gibson contributed to this report.

Rep. Mario Diaz-Balart, R-Fla., blasted the classified documents case and others into former President Trump on Monday, claiming they "make banana republics look good" in comparison.

"I think the American people see what's happening," the Republican congressman said on Fox News Business.

He pointed to what he claimed was hypocrisy from President Biden, describing that "the Biden administration has sanctioned other governments for doing much less than what the Biden administration is trying to do to President Trump."

Diaz-Balart explained that the government is being wielded against Trump while he is the "opposition candidate."

"This makes banana republics look good," he said. "It's an insult to call this a banana republic—an insult to banana republics."

A hearing into various motions in former President Trump's classified documents case continued on Monday morning in Florida. Trump's defense team is pushing back at the appointment of Special Counsel Jack Smith and alleging due process and attorney-client privilege violations during a raid on the former president's Mar-a-Lago property.

Trump's defense claims his due process rights were violated.

Tuesday morning's hearing in former President Trump's classified documents case will be sealed, meaning no press or members of the public will be permitted in the courtroom. 

The 11:00 a.m. hearing will consider a motion from Trump's defense team, asking for relief related the FBI's raid of his Mar-a-Lago property. According to the defense, the search and seizure violated his due process rights and unlawfully pierced attorney-client privilege. 

The private nature of the Tuesday morning hearing is to protect materials that can be either included under grand jury secrecy, or that Trump claims attorney client privilege or work product protection applies to.

Afterward, a public hearing will take place at 1:00 p.m., or as soon as can be arranged following the sealed event. 

The order for the sealed hearing was signed and transmitted on Monday morning by U.S. District Judge Aileen Cannon for the Southern District of Florida. 

Fox News' Jake Gibson contributed to this report.

Former President Donald Trump's hearing in the classified documents case will begin Monday at 10:00 a.m. ET.

Trump lawyers will be in Ft. Pierce, Florida to make arguments again on the appointment of Special Counsel Jack Smith.

Arguments will focus on the "unlawful funding" of Smith. On Monday afternoon, there will be a move to a motion from the prosecution. Prosecutors want conditions of release to be modified and for Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida to prohibit Trump from making public comments about the FBI being "locked and loaded and ready to take me out" when they executed a search warrant at Mar-A-Lago in August 2022.

Trump faced charges stemming from Smith's investigation into 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.

Trump pleaded not guilty.

Fox News' Claudia Kelly-Bazan and Brooke Singman contributed to this post.

Attorney General Merrick Garland testifies before the House Judiciary Committee in the Rayburn House Office Building on Capitol Hill on June 4, 2024 in Washington, DC./Photo by Sha Hanting via Getty Images

Attorney General Merrick Garland’s appointment of Jack Smith as special counsel to investigate former President Donald Trump’s alleged improper retention of classified records ruffled the feathers of many who claim the appointment was “unlawful.”

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

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

Meese and company noted in the brief that Smith was appointed "to conduct the ongoing investigation into whether any person or entity [including former President Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021."

Garland previously defended his move during a hearing on Capitol Hill, arguing 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."

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."

Fox News’ Brooke Singman contributed to this update.

Special Counsel Jack Smith asked a federal judge last month to bar former President Donald Trump from characterizing the FBI's 2022 search of Mar-a-Lago as a threat to him and his family, arguing that the claims put law enforcement agents in danger.

According to Smith's allegations, Trump "endangered law enforcement officers involved in the investigation and prosecution of this case and threatened the integrity of these proceedings." 

Trump claimed in a campaign appeal that FBI agents were "locked & loaded ready to take me out & put my family in danger."

Court documents revealed this week that the FBI used its standard use-of-force policy that prohibits the use of deadly force except when the officer conducting the search has a reasonable belief that the "subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person."

Fox News Digital's Michael Dorgan contributed to this report.

Former President Trump is expected to be sentenced after being found guilty on all counts in New York v. Trump on July 11.

The former president and presumptive Republican presidential nominee was found guilty on all 34 counts of falsifying business records in the first degree. The six-week-long trial stemmed from charges brought by Manhattan District Attorney Alvin Bragg. 

Trump’s sentencing date is set for July 11 — just four days before the Republican National Convention in Milwaukee, where he is expected to be formally nominated as the 2024 Republican presidential nominee. 

The judge overseeing the trial, U.S. District Court Judge Aileen Cannon, is considering motions to dismiss the case against former President Trump, in which he is alleged to have mishandled classified documents.

Specifically, the judge is weighing whether the appointment of U.S. Special Counsel Jack Smith and the funding of his investigations is "unlawful."

While it isn’t exactly clear whether the indictment will be thrown out altogether, several individuals, including those who are arguing in favor of the former president, believe it should be.

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

Meese and company noted in the brief that Smith was appointed "to conduct the ongoing investigation into whether any person or entity [including former President Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021."

Garland previously defended his move during a hearing on Capitol Hill, arguing 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," Garland argued, adding that he and other special counsel appointments that he and other attorneys general 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."

Fox News’ Brooke Singman contributed to this update.

An unsealed court filing in March revealed that when the FBI raided the home of former President Trump at Mar-a-Lago, they authorized “deadly force” as part of the Justice Department’s probe into Trump’s retention of classified documents.

The filing sparked outrage from the Trump campaign and many on the right.

But Andy McCarthy, former federal prosecutor and Fox News Channel contributor said the claim that President Biden authorized the use of lethal force in connection with the FBI’s execution of a court-authorized search “is political red meat for conspiracy theorists.”

“A search warrant is not a day at the circus (something I can’t say about days spent at the trial),” McCarthy wrote in an op-ed published on FoxNews.com

“Most are executed without incident; many are not. All of them involve a probable-cause finding that incriminating evidence will be recovered on the premises – which usually are associated with people suspected of crimes,” he said.

“All search warrants involve the possibility of forced entry. All of them involve police seizures of property, which can subject the personnel involved to legal risks as well as safety risks,” he said.

“As a result, and as a matter of common sense, the FBI always has an operational plan for carrying out a court-authorized search. That plan customarily involves reminding the search teams of the FBI’s use-of-force policies. Those policies, of course, include a refresher on the conditions under which lethal force may be used. This is to prepare law-enforcement officials for contingencies that are all too familiar, and to protect the agency and agents in the event of later legal claims,” he said.

The judge overseeing the trial, U.S. District Court Judge Aileen Cannon, is considering motions to dismiss the case against former President Trump, in which he is alleged to have mishandled classified documents.

In a hearing on Friday, she will hear arguments regarding the legality and validity of Special Counsel Jack Smith’s appointment to the classified documents investigation by Attorney General Merrick Garland in 2022. Cannon is notably allowing legal experts to weigh in via Amicus briefs.

According to former Attorney General Ed Meese, who served under former President Reagan, Smith’s status as a private citizen at the time of the appointment left him without “the authority of the federal government.”

The brief went on to say, "Improperly appointed, [Smith] has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.” Cannon was initially appointed to her post by Trump during his presidency, prompting some critics to claim she is operating in his favor and cannot act impartially. 

Fox News Digital’s Brooke Singman contributed to this report.

Former President Trump’s legal team is back in court on Monday after a Friday hearing in which both sides argued the legality of Special Counsel Jack Smith's appointment in the classified document case against the former president.

The hearing continues Monday when the two sides again discuss matters related to Smith’s appointment as well as a limited gag order that prosecutors have requested to bar Trump from comments they fear could endanger the safety of FBI agents and other law enforcement officials involved in the case.

Trump’s lawyers have said any speech restrictions would infringe on his free speech rights. Cannon initially rejected the prosecution’s request on technical grounds, saying Smith’s team had not sufficiently conferred with defense lawyers before seeking the restrictions. Prosecutors subsequently renewed the request.

Bove mentioned the term "shadow government" 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.

Prosecutors said there was nothing improper or unusual about Smith’s appointment, with James Pearce, a member of Smith’s team, at one point saying, "We are in compliance. We have complied with all of the department’s policies."

Cannon did not make a decision on Friday and is expected to issue a written order on the matter in the coming days.

This is an excerpt from an article by Fox News' Andrew Mark Miller