U.S. District Court Judge Aileen Cannon has expanded the scope of a June 21 hearing in Donald Trump’s classified documents case, which could invalidate Jack Smith’s appointment as special counsel and upend his prosecutions of Trump.
Judge Cannon’s late Tuesday evening order will allow lawyers to argue several briefs filed by outside attorneys, including a brief by lawyers representing former Attorney General Ed Meese and Citizens United, among others, arguing the Jack Smith appointment is unconstitutional.
The group originally filed an amicus (or “friend of the court”) brief in December arguing that Smith lacks authority to represent the United States when Smith asked the Supreme Court to weigh in (called a petition for certiorari) regarding Trump’s immunity. The amicus argued that Smith’s appointment is unconstitutional because the office he holds has not been created by Congress, and that even if it had been, the Appointments Clause of the Constitution further requires that Smith cannot hold the range of power he wields without Senate confirmation.
Essentially, the brief claims Attorney General Merrick Garland improperly appointed Smith to an office that does not exist with authority Garland does not possess.
Versions of this amicus brief have been filed by the same group of lawyers at various levels of Trump’s case in Washington, including the Supreme Court.
Cannon likely made the rare decision allowing third party oral arguments due to untested legal questions being addressed by the court. Two of the groups support the dismissal of the case, while a third agrees with the Department of Justice’s use of a special counsel.
Congress did at one time establish an office similar to a special counsel, called an “independent counsel.” But that statute expired in 1999, leading Meese to argue the Smith appointment does not pass legal muster.
While Congress – which created the Department of Justice – does authorize an “officer” authority and powers similar to those possessed by Smith, those officers must be appointed by a president and confirmed by the Senate.
Smith, merely an employee of Garland, does not possess that authority, nor does Garland have the authority to create such an office or give such power, Meese and his cohorts argue.
“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” they wrote.
Hours before Cannon’s order, the brief was elevated to the top law enforcement official in the land in a Capitol Hill hearing room.
On Tuesday Rep. Thomas Massie (R-KY), after reading the Appointments Clause to Garland during a House Judiciary Committee oversight hearing, asked him whether the Special Counsel office is legal.
Garland demurred but acknowledged that Smith had not been nominated by Biden or confirmed by the Senate.
“You’ve created an office in the U.S. government that doesn’t exist and without authorization from Congress,” Massie told Garland before submitting the Meese amicus brief into the record.
Joining Meese in filing the amicus brief are former U.S. Attorney General Michael Mukasey; Citizens United, whose president—Dave Bossie—is also Vice Chairman of this year’s Republican National Convention in Milwaukee; and two prominent constitutional law experts. They are represented by lawyers from Schaerr Jaffe, a powerhouse D.C.-based boutique law firm.
The Florida case, one of two criminal cases Smith has pursued against Trump, is unlikely to head to trial before the November election because Cannon suspended a key deadline after Trump’s attorneys argued that Smith had failed to preserve critical evidence. Yet a ruling from Cannon on Smith’s appointment itself could come before November.
Smith’s Washington, DC, case alleging Trump committed election interference would be further jeopardized should Cannon rule Smith’s appointment violated the Appointments Clause. In oral arguments in April, a majority of Supreme Court justices sympathized with Trump’s attorneys’ arguments that a president does enjoy some level of immunity that endures past the term of office.
The Washington case is also unlikely to be decided before the November election.
The case is United States v. Trump, 9:23-cr-80101, in the U.S. District Court for the Southern District of Florida.
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Bradley Jaye is a Capitol Hill Correspondent for Breitbart News. Follow him on X/Twitter at @BradleyAJaye.