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Judge Aileen Cannon is planning on holding a sprawling hearing on Donald Trump’s request to declare Jack Smith’s appointment as special counsel invalid, signaling the judge could be more willing than any other trial judge to veto the special prosecutor’s authority.
The planned hearing also adds a new, unusual twist in the federal criminal national security case against the former president: Cannon on Tuesday said that a variety of political partisans and constitutional scholars not otherwise involved with the case can join in the oral arguments on June 21.
It’s an extraordinary elevation of arguments in a criminal case first filed a year ago this week that likely won’t see trial until next year, if at all.
Similar challenges from Trump and other high-level targets of special counsel probes have flopped from coast to coast in recent years: Hunter Biden’s attorney didn’t get anywhere with judges in Los Angeles and Delaware; Paul Manafort’s arguments fell flat when the former Trump campaign chairman challenged special counsel Robert Mueller’s authority; and Andrew Miller, a former associate of Roger Stone, also lost his challenge to Mueller’s authority.
Even with other federal trial-level judges allowing special counsels’ criminal prosecutions, Cannon could rule differently.
Cannon’s signal of willingness to entertain challenges to the special counsel comes in the same week Republicans are bearing down on Attorney General Merrick Garland for his use of special counsels.
The issue, now before Cannon in the Southern District of Florida federal court, is likely to remain in the political debate at least until Cannon holds a hearing on the legal power of the special counsel to prosecute a defendant, on June 21.
Cannon has already taken a drastically different tack from other trial-level federal judges who have handled criminal cases charged by recent special counsel’s offices – of which there have been five since Trump became president.
While others have moved swiftly to trial – including special counsel David Weiss trying his case against Hunter Biden in Delaware this week, eight months after indictment – Cannon has moved slowly on pre-trial issues from Trump and his two co-defendants. Many of the most substantive legal questions to be decided in the classified records case, which the Justice Department first brought against Trump last June, aren’t yet ripe for a decision.
And it is highly unusual for a federal trial judge to allow a third-party group unaffiliated with a criminal case to argue in court as part of a defendant’s legal challenges to the case itself. That work is essentially reserved for defendants’ teams to bring and argue in courts across the country, opposite Justice Department prosecutors. Allowing third parties to argue in court is even rare in appeals situations.
“The fact these motions are even being entertained with a hearing is itself ridiculous. That third parties are being allowed to opine at the hearing is absurd,” Bradley Moss, a national security law expert based in Washington, DC, told CNN.
But Cannon has been convinced by three separate groups of lawyers that they should be able to argue before her. Two of those groups support Trump’s position to dismiss the case against him and say the special counsel, for various constitutional reasons, doesn’t have authority to prosecute. A third group says the Department of Justice’s use of a special counsel should be upheld.
Two former Republican-appointed US attorneys general, Edwin Meese and Michael Mukasey, are part of the groups of so-called “friends of the court” that side with Trump and whom Cannon will hear from. The three groups will be allowed to argue, in addition to Justice Department and defendants’ lawyers, for 30 minutes each, according to the court record.
Meese and Mukasey have special insight to share with the judge, they say, given their former roles leading the Justice Department.
