Judge Aileen Cannon is to hold a hearing on Friday to determine if Special Counsel Jack Smith has the legal right to prosecute Donald Trump, after his legal team filed a motion that claims the Justice Department has no legal right to establish a special counsel whose sole focus is to prosecute the former president.
The former president is facing 40 federal charges over his handling of sensitive materials seized from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021. He is also accused of obstructing efforts by federal authorities to retrieve them. Trump has pleaded not guilty to all charges.
Newsweek contacted Trump's attorney and the special counsel's office via email for comment on Wednesday.
A law professor, Seth Barrett Tillman, and a conservative advocacy group, the Landmark Legal Foundation, filed a motion on Monday seeking to file additional documents in the case.
Cannon has already allowed both to file "amicus," or friends of the court, briefings in the case. Amicus briefings are expert opinions that a judge may accept into a case.
On its website, Landmark says it "advances an 'originalist' approach to the Constitution—that the words in the Constitution mean what they meant at the founding—and defends our nation's bedrock principle of liberty."
Barrett Tillman has been a law professor in Maynooth University in Ireland for more than 10 years.
In their joint motion, Barrett Tillman and the Landmark foundation note that, in March, they filed an amicus brief in which they claim that Smith is "a mere 'employee'" and that "Special Counsel Smith does not hold an 'office' and he is not an 'Officer of the United States,'" which means that funding him separately from the Department of Justice is a violation of the U.S. Constitution.
On May 7, Cannon issued an order setting a hearing on a defense motion to dismiss the indictment based on the alleged unlawful appointment of the special counsel. That hearing is due to go ahead in her Florida court at 9:30 a.m. on Friday.
In a motion on June 11, Trump's lawyers claimed President Joe Biden gave Smith a "blank check" to go after the former president.
They also claimed that Smith has been used as a "surrogate" by Biden in his reelection campaign.
Their motion claims that the Department of Justice's funding of Smith is a violation of the Appropriations Clause, which stipulates how Congress should spend public funds.
Trump lawyers Todd Blanche and Chris Kise alleged that U.S. Attorney General Merrick Garland "unleashed Smith as a Biden campaign surrogate to try to harm President Trump's campaign by any means necessary."
"It is unlikely, at best, that there is any source of funding at [the] DOJ [Department of Justice] that could have funded the sprawling, politically-motivated activities that Smith has undertaken as if President Biden handed him a blank check," they stated.
They claim that the unlimited funding of Smith is in contrast to the budget limitations in other parts of the Department of Justice.
In addition to the Florida case, Smith is also prosecuting Trump on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. The presumptive Republican presidential nominee has pleaded not guilty to all charges.
The election interference case has been frozen while the Supreme Court considers Trump's claim that he has presidential immunity from prosecution.
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Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
