Republican presidential candidate and former U.S. president Donald Trump speaks in West Palm Beach, Fla., on June 14.Gerald Herbert/The Associated Press
Donald Trump’s lawyer argued on Friday that the criminal case charging the former U.S. president with mishandling classified documents should be thrown out because the prosecutor is too independent – even as Trump complains that his legal woes are directed by Democratic President Joe Biden.
At a hearing in a federal court in Florida, Trump lawyer Emil Bove pressed U.S. Judge Aileen Cannon to dismiss the case because Special Counsel Jack Smith is not subject to the constraints that other federal prosecutors must face.
“Jack Smith does not have a superior who is operating with sufficient oversight authority over his decisions right now,” Bove said.
That argument has not succeeded in other cases involving special counsels, who have been appointed in Democratic and Republican-led administrations alike to ensure a degree of autonomy in politically sensitive cases.
But Cannon, a Trump appointee, has ruled in favour of the Republican presidential candidate on previous requests and has allowed a flurry of motions by his legal team to slow the case to a crawl. It is unlikely the case will reach a jury before Trump and Biden face voters in the Nov. 5 election.
Trump’s legal challenge is part of a multi-pronged attack on Smith, whom he has called “deranged” and a “thug” on social media. Smith, a veteran public corruption prosecutor who worked on war crimes cases in The Hague, was named by Attorney General Merrick Garland in 2022 to lead the investigations into Trump.
Bove challenged the legal authority behind Smith’s appointment, arguing that Congress would have to approve a prosecutor with his level of autonomy.
Justice Department lawyer James Pearce told Cannon that Smith’s independence is not absolute, as Garland has the power to weigh in on important decisions and overrule him if necessary.
Cannon asked Pearce if Garland had approved Smith’s decision to bring criminal charges in the classified documents case.
Pearce declined to answer, saying the Justice Department needed to preserve the confidentiality of its internal decision-making.
In a rare move, Cannon has allowed three outside lawyers, including two siding with Trump, to argue during Friday’s hearing. Neither Trump nor Smith attended the heading.
Hearings in the case will continue on Monday and Tuesday.
The hearings mark the first time Trump’s legal team has appeared in court since he was convicted on 34 felony counts in May of falsifying business records in New York.
Smith oversees the classified documents prosecution and a second criminal case in Washington accusing Trump of attempting to overturn his 2020 election defeat.
That case likewise has been delayed as the U.S. Supreme Court considers his claims of presidential immunity. It is expected to issue a ruling by the end of June, but did not do so on Friday.
Trump has pleaded not guilty in both of those cases and a separate election-interference case in Georgia.
He has frequently claimed that his four criminal cases stem from a co-ordinated effort by Biden’s Democrats to hobble his presidential bid.
As special counsel, Smith operates with a greater degree of independence than other federal prosecutors in an effort to minimize political influence.
Trump’s lawyers face an uphill battle as they challenge the special counsel appointment, as courts have previously rejected challenges to their authority, most recently in cases involving Biden’s son Hunter, who was found guilty this month on gun charges.
Trump has not raised the same challenge to Smith in the election case in Washington, where judges would be bound by prior rulings in prior challenges to special counsel.
The hearings will also address Trump’s bid to suppress evidence seized during an FBI search of his Mar-a-Lago resort and Smith’s request to bar Trump from making statements that may endanger law enforcement. That stems from Trump’s baseless claim that a standard FBI use-of-force policy filed ahead of a search of his Florida property was an authorization to assassinate him.