Judge Cannon wants to know whether Merrick Garland is supervising Jack Smith
The judge in Donald Trump’s classified documents case asked lawyers how much independence the special counsel has.
6/21/20241/2
Under persistent questioning from U.S. District Judge Aileen Cannon,the prosecutors declined to divulge detailsand seemed caught off-guard by the inquiries. At one point, Smith deputy James Pearce saidhe was “not authorized” to discuss the level of communicationthat occurred between the attorney general and the special counsel.
“I don’t want to make it seem like I’m hiding something,” Pearce then said.
The questioning came at the end of a five-hourhearing focused on a long-shot effort by Trump to have the charges against him thrown out. Smith has accused Trump of hoarding national secrets at his Mar-a-Lago estate after his presidency and obstructing the government’s efforts to retrieve them.
Trump contends that Smith’s appointment by Garland as special counsel in November 2022 isunconstitutional and that Smith lacked the legal authority to bring the case against the former president.
Though other courts have uniformly swept aside similar challenges to the validity of special counsel appointments,Cannon— a 2020 Trump appointee to the bench —scheduled lengthy oral arguments on the matter, a sign that she was taking it seriously. During Friday’s proceedings, she gave little indication of how she intends to rule.
The Justice Department typically appoints special counsels to oversee cases in which the department’s leadership may have a conflict of interest. Under DOJ regulations, special counsels report to the attorney general but have more independence than other federal prosecutors.
Trump has publicly claimed, without evidence, that Smith is essentially a pawn of President Joe Biden. But in court,his lawyersare making a contrary argument:that Smith’s independence means he’s operating beyond the limits of what DOJ employeesare permitted to do. Under the Constitution, only an officer appointed by the president and confirmed by the Senate can wield the level of power that Smith has, Trump’s lawyers claim. For decades, special counsels have not been presidentially appointed or Senate-confirmed. (Politico is changing the term uses, which is Smith is not an official DOJ officer and cannot be appointed to special counsel, he is not a DOJ DAG—I think the term is)
In questioning prosecutors about Garland’s supervision, Cannon seemed to betrying to determine how much independent authority Smith has in practice.
Before the judge asked her questions, Trump attorney Emil Bove pointed out that Garland had said that he had “no coordination” with Smith on the other criminal case that Smith has brought against the former president: charges alleging Trump tried to overturn the 2020 election.
Smith’s team, led by Pearce, sharply rebutted arguments that Smith’s appointment was illegal and described Smith’s role as an uncontroversial exercise of Garland’s ability to organize the Justice Department as he sees fit. Pearce emphasized that Smith was “in compliance” with longstanding Justice Department rules and regulations regarding his appointment and his handling of the case…
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