Judge Cannon Expands Hearing on Validity of Trump Special Counsel

(Left) U.S. District Judge Aileen Cannon. (Right) Special counsel Jack Smith. (U.S. Southern District of Florida; Saul Loeb/AFP via Getty Images)

The federal judge overseeing one of the criminal cases against former President Donald Trump has made the unusual decision to open up an upcoming hearing to outside parties as she considers whether special counsel Jack Smith’s appointment was valid.

U.S. District Judge Aileen Cannon, an appointee of President Trump, said on June 4 that three outside experts will be able to make their cases for up to 30 minutes each during the hearing, which is slated to take place in federal court in Florida on June 21.

“I’m looking forward to the opportunity to help Judge Cannon understand more fully why Jack Smith has no authority to prosecute President Trump, and to answer any questions she may have about the legal analysis we have offered on behalf of (among others) two respected former U.S. attorneys general,” Gene Schaerr, one of the experts, told The Epoch Times in an email.

President Trump alleges that Attorney General Merrick Garland’s appointment of Mr. Smith is illegal because he was not working for the federal government when the appointment was made.

“The Appointments Clause does not permit the attorney general to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States. As such, Jack Smith lacks the authority to prosecute this action,” Christopher Kise, one of the former president’s attorneys, wrote in a motion to the court.

Government lawyers say those arguments are wrong, as does Matthew Seligman, a former clerk to U.S. Circuit Judge Douglas Ginsburg.

Mr. Seligman, one of the outside experts who is being allowed to present to Judge Cannon, said in a recent brief that the Appointments Clause does empower the attorney general to appoint a special counsel like Mr. Smith.

“Mr. Trump apparently concedes that Attorney General Garland could constitutionally appoint special counsel Smith as an inferior officer if Congress had vested him with that power, but he argues that Congress did not do so. But that argument simply ignores the plain text of Section 533, which unambiguously authorizes the attorney general to appoint ‘officials’ like the special counsel to ’prosecute crimes against the United States,'” Mr. Seligman wrote.

The two other outside experts who will be arguing later this month, though, agree with President Trump that Mr. Smith’s appointment was unlawful.

Josh Blackman, a professor at the South Texas College of Law Houston, holds the view that because Mr. Smith’s position is temporary, he cannot be an officer of the United States. Instead, Mr. Smith is at most an employee of the government, which means he “cannot exercise the ’significant authority' of a United States attorney,” Mr. Blackman wrote in a brief to the court.

“Were Mr. Smith akin to a line assistant United States attorney, he could exercise prosecutorial powers under the supervision of a United States attorney. But Smith was not granted such a subordinate power. Rather, he was given, and has exercised apex decision-making authority, which is subject only to limited supervision by the attorney general,” Mr. Blackman said. “But unlike a normal United States attorney who can be removed by the president, the special counsel can only be removed under the regulations in certain circumstances by the attorney general—assuming that this appointment was made subject to all of the regulations.”

Mr. Smith may be able to continue in his position, but only if he’s supervised by a U.S. attorney, according to Mr. Blackman.

“I am grateful that Judge Cannon granted our motion, and I look forward to presenting arguments in court,” Mr. Blackman told The Epoch Times in an email.

Mr. Schaerr, who was a law clerk for Supreme Court Justices Warren Burger and Justice Antonin Scalia, also says Mr. Smith was unlawfully appointed.

Mr. Schaerr will be presenting arguments led by former Attorney General Edwin Meese III, who served under former President Ronald Reagan and now works at the Heritage Foundation.

Mr. Meese and others said in a filing that Mr. Smith’s appointment violates the Appointments Clause because only Congress can create a federal office and no law authorizes the position he supposedly holds.

While then-Attorney General Janet Reno issued regulations after the expiration of the Ethics in Government Act (EGA) provision that allowed appointments of independent counsel that enabled attorney generals to periodically appoint people to lead an office of special counsel, the regulations are not a law, they said.

“The problem for the government in the case of the Reno regulations and the Smith appointment is that those regulations and the Smith appointment order do not contemplate ’special counsels’ who assist U.S. Attorneys. Instead, they contemplate special counsels who replace U.S. attorneys in specific cases. Smith, for example, was not appointed to assist U.S. attorneys. He was hired as a powerful standalone officer who replaces, rather than assists, the functions of United States Attorneys within the scope of his jurisdiction,” the experts said.

“This is precisely the role that the EGA authorized for independent counsels. But that statute no longer exists, and in the absence of that statute or a similar one, there is no statutory office of special counsel to which Smith could be appointed to function as a stand-in for a U.S. attorney,” they added.

The case against President Trump involves his handling of sensitive materials and his alleged obstruction of investigators searching for those materials. He and his codefendants have pleaded not guilty.