Trump attorney Emil Bove argued that because Garland has repeatedly said Smith is acting independently, the special counsel should be considered a “principal officer” — a top government official who has no immediate supervisor and whose appointment requires Senate approval.
The special counsel team countered that Smith, like other special counsels before him, is not a principal officer. The team said that while federal regulations say Garland does not provide day-to-day supervision of special counsels, the attorney general ensures they adhere to Justice Department protocols and can review major investigatory steps.
Garland has appointed three special counsels during his tenure — to investigate Trump, President Biden and the president’s son, Hunter. He has met with each of them during their investigations and has been briefed on significant steps in the cases, according to people familiar with internal conversations.
Cannon asked prosecutor James Pearce, who is on the special counsel team, whether Garland reviewed, before it was filed, the indictment that accuses Trump of mishandling classified documents after leaving the White House and obstructing government efforts to get them back.
“Has there been any actual oversight,” the judge said.
“Yes,” Pearce responded. But he said he could not discuss internal deliberations and was unable to directly answer whether Garland reviewed the indictment.
“Why would there be any heartburn to answer whether the attorney general signed off on the indictment?” Cannon shot back.
The pretrial hearing was the first of five that Cannon has scheduled over three days, including multiple sessions Monday and Tuesday. It’s common for defense lawyers to file every motion they can to try to dismiss or delay cases against their clients. But judges usually hold hearings on only the biggest and most viable motions.
Friday’s hearing highlighted Cannon’s willingness to delve into the minutia and entertain some of Trump’s more long-shot legal motions — even if she ultimately rules against the former president. Her tendency to allow in-person argument on many small and incremental questions has led to a backlog of key decisions and a delay in the start of Trump’s trial.
Based on the proceedings, it’s unclear how Cannon will rule on the dismissal motion, but she acknowledged that precedent seems to support Garland’s appointment of Smith and that there would be a high legal bar for overturning it.
The theory that Smith’s appointment is unconstitutional is popular in some conservative legal circles. Cannon invited three outside lawyers — known as amici — to argue in court Friday. Two said Smith was unlawfully appointed and a third sided with the government. Similar challenges to other recent special counsels, including Robert S. Mueller III, have been rejected in court — a decision that Cannon referred to on Friday.
“What do you make of this potentially tolerated practice,” Cannon asked outside attorney Gene Schaerr, noting that previous attorneys general have made appointments similar to Garland’s naming of Smith.
“It’s an imperfect world, and people make mistakes,” Schaerr responded. “And just because other people have made mistakes doesn’t mean this court should too.”
Trump’s attorney said at the hearing that there are differences in the legal arguments they were making vs. the rejected ones made in D.C. around the Mueller appointment.
While Cannon has largely ruled against Trump’s motions in the case, the timing of her decisions has favored the former president, who has argued that any trial should occur after the November presidential election in which he is the presumptive Republican candidate.
The judge, a Trump nominee who has been on the bench since late 2020, has indefinitely postponed Trump’s trial from its original May start date, even though both sides told her earlier this year they could be ready for trial by August. She has allowed motions to pile up and is going through them slowly, making it unlikely that the trial could happen before the election.
Trump, who did not attend Friday’s hearing, faces dozens of counts accusing him of mishandling classified information after his presidency ended and plotting with two aides to obstruct government efforts to recover the material from Mar-a-Lago, his Palm Beach, Fla., home and private club. He has pleaded not guilty.
Smith also did not attend the proceedings.
Smith is also overseeing the separate federal case charging Trump in D.C. over his efforts to overturn the results of the 2020 election. That case is on pause while the Supreme Court settles the question of whether presidential immunity from criminal prosecution extends to the allegations that federal prosecutors have laid out against him in the D.C. indictment. A decision from the nation’s highest court is expected next week or in early July.
Trump separately faces a state case in Georgia over allegations that he attempted to overturn the 2020 election results in the state. That case is on pause as an attempt to disqualify the prosecutor in the case makes its way through the state appeal courts.
Last month, a New York jury convicted Trump of violating state laws when he falsified business records to cover up a hush money payment to an adult film actress to influence the 2016 presidential election.
At Friday’s hearing, Trump’s attorney tried to argue that Garland — a Biden appointee — must not be providing oversight of the special counsel, because the special counsel team has said in court that the Biden administration has not interfered with the prosecution. It’s standard protocol for the Justice Department to have greater distance from the president than other federal agencies, and Biden and Garland have said that Biden has not interfered with Trump’s cases.
Cannon asked Pearce whether there was any conflict between asserting that the Biden administration has not interfered and claiming that Garland has provided oversight to the special counsel. Pearce implied there was not and repeated that the Biden administration has not interfered with the case.
He also said Garland and Smith have followed Justice Department regulations throughout the investigation.
Next week, Cannon is scheduled to hear arguments on requests from prosecutors to restrict Trump from making any further incendiary claims that falsely suggest that FBI agents were “complicit in a plot to assassinate him,” as well a motion from Trump’s attorneys to disqualify the use at trial of audio notes that investigators obtained from one of his attorneys, Evan Corcoran.
Cannon will also consider whether Smith’s position is legally funded and weigh Trump’s request for what is known as a Franks hearing, to determine whether investigators falsified aspects of the affidavit they used to obtain a search warrant for Mar-a-Lago and, if so, whether the evidence collected when executing the warrant should be excluded from trial.
There is usually a high legal threshold to hold a Franks hearing. Cannon said she will schedule one at a later date if she determines it is needed.
