Trump classified docs judge to weigh alleged 'unlawful' appointment of Special Counsel Jack Smith

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 CLASSIFIED DOCS JUDGE EXPANDS HEARING TO CONSIDER 'UNLAWFUL' APPOINTMENT OF SPECIAL COUNSEL JACK SMITH

Donald Trump and Jack Smith (Getty Images)

Former Attorney General Ed Meese, who served under former President Reagan, filed an amicus brief in the case, in which he argues that Attorney General Merrick Garland’s appointment of 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. 

FEDERAL JUDGE POSTPONES TRUMP'S CLASSIFIED RECORDS TRIAL WITH NO NEW DATE

Attorney General Merrick Garland testifies during a House Judiciary Committee hearing on Tuesday, June 4, 2024, on Capitol Hill.  (AP/Jacquelyn Martin)

Meese argues that 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 defended his move earlier this month 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 other special counsel appointments he and other attorneys general have made cite a regulation that points to a statute. 

REP. MASSIE PRESSES GARLAND ON CONSTITUTIONALITY OF SPECIAL COUNSEL JACK SMITH’S APPOINTMENT

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."

President Trump awards the National Medal of Freedom to former Attorney General Edwin Meese during a ceremony at the White House, Oct. 8, 2019. (Chip Somodevilla/Getty Images)

Meese’s brief was even mentioned in a question by Justice Clarence Thomas in the Supreme Court oral arguments over Trump's presidential immunity in Smith’s other case regarding 2020 election interference, which the high court is expected to decide this month.

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."

Meanwhile, 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. 

Former President Trump sits in Manhattan Criminal Court in New York City, on May 21, 2024. (Justin Lane/Pool/AFP via Getty Images)

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

Cannon did not schedule a new trial date.

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.

Cannon's move last month to indefinitely postpone the trial comes after the judge unsealed a slew of documents related to the FBI’s investigation into the former president and the FBI’s raid on his Mar-a-Lago, Florida, estate in 2022.

The documents provided a detailed look into the personnel involved in the raid on Mar-a-Lago and a play-by-play timeline of it. One of the documents is an FBI file that suggests the agency's investigation into Trump’s alleged mishandling of classified documents was dubbed "Plasmic Echo."

HOUSE JUDICIARY COMMITTEE INVESTIGATES 'MANIPULATED' EVIDENCE SEIZED BY FBI IN TRUMP CLASSIFIED RECORDS PROBE

Another unsealed FBI memo memorialized the role of Garland in the investigation.

In a document dated March 30, 2022, Garland provided his approval to allow the investigation into Trump’s alleged mishandling of classified documents to upgrade to a "full investigation."

"This email conveys Department of Justice (DOJ) Attorney General (AG) [Merrick Garland] approval for conversion to a full investigation," a synopsis of the restricted document reads.

Attorney General Merrick Garland (Chip Somodevilla/Getty Images)

Also, last month, Smith and federal prosecutors admitted in a court filing that documents seized during the raid on Mar-a-Lago are no longer in their original order and sequence.

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"There are some boxes where the order of items within that box is not the same as in the associated scans," Smith's filing states.  

The prosecutors had previously told the court that the documents were "in their original, intact form as seized." 

House Judiciary Committee Chair Jim Jordan, R-Ohio, is investigating whether that evidence was "altered or manipulated."

Smith also charged Trump in a separate jurisdiction, in Washington, D.C., out of his investigation into election interference and Jan. 6. Trump pleaded not guilty to those charges, as well.

That trial was postponed indefinitely. The Supreme Court is considering arguments on presidential immunity and whether Trump is immune from prosecution in Smith's case.

The high court is expected to rule on the matter by the end of the term next week.