For Judge in Trump Documents Case, Unusual Rulings Are Business as Usual
Judge Aileen Cannon has repeatedly proven willing to hear out even far-fetched arguments from the former president’s legal team, including a challenge to the appointment of the special counsel, Jack Smith. June 20, 2024, 4:15 p.m. ET (attack on Cannon by the “supposedly Elite”)1/2
When Judge Aileen M. Cannon presides over a hearing on Friday in former President Donald J. Trump’s classified documents case, she will spend the day considering well-trod arguments about an arcane legal issue in an unorthodox manner.
It will be the latest example of how her unusual handling of the case has now become business as usual.
Over the past several months, Judge Cannon, who was appointed by Mr. Trump in his final days in office, has made a number of decisions that have prompted second-guessing and criticism among legal scholars following the case. Many of her rulings, on a wide array of topics, have been confounding to them, often evincing her willingness to grant a serious hearing to far-fetched issues that Mr. Trump’s lawyers have raised in his defense.
The issue that will be discussed on Friday in Federal District Court in Fort Pierce, Fla., is a motion by the defense to dismiss the charges in the case on the grounds that Jack Smith, the special counsel who filed them last spring, was improperly funded and appointed.
The defense has argued that Mr. Smith was not named to his post by the president or approved by the Senate like other federal officers, and that Attorney General Merrick B. Garland, who gave him the job, had no legal power to do so on his own.
Mr. Smith’s deputies have countered that under the appointments clause of the Constitution, agency heads like Mr. Garland are authorized to name “inferior officers” like special counsels to act as their subordinates.
And while the subject of the hearing may seem rather technical, what is most unusual is that it is happening at all.
Reaching back to the early 1970s, courts have repeatedly rejected efforts like Mr. Trump’s to question the legality of independent prosecutors. Those have included the Supreme Court upholding the appointment of Leon Jaworski, one of the special prosecutors who investigated the Watergate scandal, in a decision that was largely focused on the issue of President Richard Nixon’s claims of executive privilege.
Judges have also tossed efforts to invalidate the work of special counsels like Robert S. Mueller III, who examined connections between Russia and Mr. Trump’s 2016 campaign, and David C. Weiss, who has brought two criminal cases against Hunter Biden, President Biden’s son.
Despite this record, however, Judge Cannon has decided to consider the constitutionality of Mr. Smith’s appointment anew — and not on the merits of written briefs, but rather at an expansive hearing that will spill across two days. The proceeding might go beyond the normal process of merely making arguments and could include, as the judge recently wrote, the “presentation of evidence,” though it remains unclear what evidence she meant.
In another unusual move, Judge Cannon is allowing three lawyers who have filed what are known as amicus or friend-of-the-court briefs to argue in front of her for 30 minutes each. While these outside parties — referred to as “amici” — are commonly permitted to make their case directly to judges in appellate courts like the Supreme Court, that is not the standard practice in trial courts.
“The fact that Judge Cannon granted the amici request for oral argument seems to suggest that she is seriously considering the constitutional argument against the appointment of the special counsel,” said Joel S. Johnson, an associate professor at Pepperdine Caruso School of Law.
One of the most striking aspects of Judge Cannon’s tenure is that she has largely ignored a common practice in the Southern District of Florida, where she sits, of trial judges handing off routine motions to the magistrate judge attached to a case.
https://archive.is/6sPDO#selection-4521.0-4810.4