Federal Judge Allows Pro-Trump Briefs in Classified Documents Case

Former President Donald Trump sits in New York State Supreme Court during the civil fraud trial against the Trump Organization in New York City on Jan. 11, 2024. PETER FOLEY/POOL/AFP via Getty Images

The federal judge overseeing the Trump classified documents case on Wednesday allowed third-party legal groups to submit friend of the court briefs that could benefit former President Donald Trump.

U.S. District Judge Aileen Cannon issued a paperless order that allows former Trump adviser Stephen Miller‘s America First Legal Foundation to file a brief in the case. She also allowed a submission from former Republican Attorney General Edwin Meese, who argued that special counsel Jack Smith, who is prosecuting the case, was unconstitutionally appointed by the Department of Justice (DOJ).

The filings may influence the overall outcome of the prosecution against President Trump, who is accused of illegally retaining classified documents after he left the White House and faces 40 charges. He has pleaded not guilty.

“The Court has reviewed the motions and finds that the proposed amici bring to the Court’s attention relevant matter that may be of considerable help to the Court in resolving the cited pretrial motions,” Judge Cannon wrote in the order, referring to the two submissions. “The amicus briefs are accepted for Court consideration.”

The America First brief argued that a National Archives and Records Administration (NARA) referral that was made to the DOJ to indict President Trump violated sections of the federal Administrative Procedure Act, arguing that if left alone, it would “dangerously expand the ability of an incumbent President to harass a former President by seizing documents based on the request of any agency for nearly any reason.”

It then argued that NARA “used its heretofore unused DOJ referral power to criminally pursue a former President—and current presidential candidate—during an election season.” America First later added that the case should be dismissed.

In Mr. Meese’s brief, he and two law professors argued that Mr. Smith has “no authority to prosecute” the classified documents case because he was not properly appointed as a federal officer. His appointment in late 2022 by Attorney General Merrick Garland violates the U.S. Constitution’s Appointments Clause was a violation of the attorney general’s statutory and constitutional authority.

He added that only Congress has the ability to create new federal officials and that the Constitution doesn’t grant the president or heads of federal agencies the ability to “create any offices of appoint whatever officers they deem appropriate.”

Statutes that Mr. Garland cited to appoint Mr. Smith, he wrote, “remotely authorized the appointment by the Attorney General of a private citizen or government employee to receive extraordinary criminal law enforcement power under the title of Special Counsel.”

“Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. He wields tremendous power, answerable to no one,” they wrote. “And that is a serious problem for the rule of law—whatever one may think of former President Trump or the conduct Smith challenges in the underlying case.”

Mr. Meese, who was joined by law professors Steven Calabresi of Northwestern University and Gary Lawson of Boston University in the brief, made similar arguments late last year when he filed an amicus brief to the Supreme Court in a separate case.

In January 2024, Mr. Garland told reporters at a news conference that he had the constitutional right to appoint Mr. Smith to head both the classified documents case and a case accusing the former president of trying to allegedly subvert the 2020 election.

“When I appointed Mr. Smith, I did so because it underscores the Justice Department’s commitment to both independence and accountability,” the attorney general said.

“Mr. Smith is a veteran career prosecutor. He has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law. Any questions about this matter will have to be answered by their filings,” Mr. Garland added.

Other Case Activity

Last week, prosecutors under Mr. Smith asked Judge Cannon to schedule a trial for July in the classified documents case, while the former president’s lawyers argued it should be held off until after the November election. During a court hearing, the judge didn’t set a date but appeared to shoot down the July suggestion.

The case had been scheduled for months to reach trial on May 20, but Judge Cannon had signaled months ago that she intended to reconsider that date.

And during the court hearing, she told prosecutors that a July 8 trial start would be “unrealistic.” She also noted that President Trump faces three other criminal cases, including one in New York City that is scheduled to start later this month.

“That has to come into the equation, to some extent, on scheduling,” she said, according to reporters in the court last week.

Lawyers for President Trump told the court that the July date is “unworkable” and suggested that it would be “unfair” to 2024 voters if it started before November.

The Associated Press contributed to this report.