Trump questions Jack Smith's authority in secret documents case

In former President Donald Trump’s latest attempt to dismiss charges over his handling of classified documents, one of his lawyers argued at a hearing Friday that special counsel Jack Smith lacks the authority to bring the case to trial.

“Jack Smith does not currently have a superior who acts with sufficient control over his decisions,” Trump’s lawyer Emil Bove told U.S. District Judge Aileen Cannon, who scheduled Friday for the hearing of Trump’s objection to the appointment of special counsel Jack Smith in the case.

Smith was appointed by Attorney General Merrick Garland in November 2022 to lead the investigation into Trump’s retention of classified documents after he took office in the White House, as well as a separate investigation into Trump’s efforts to overturn the 2020 presidential election. Smith ultimately brought charges against Trump in Florida based on the documents investigation and in Washington, DC based on the election interference investigation.

Justice Department attorney James Pearce said at the hearing that Smith is still subject to oversight because Garland has a say in key decisions and can even overrule the special counsel if necessary.

Garland said at the time of Smith’s appointment that the move underscored the Justice Department’s “commitment to independence and accountability in particularly sensitive matters.”

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Trump is accused of mishandling secret documents. Among other things, he is said to have deliberately withheld information on national defense after his presidency, such as documents on the military capabilities of the United States and other countries.

Trump argues that special investigators are illegal

In a motion before Friday’s hearing, Trump’s team argued that Garland did not have the authority to appoint a special counsel to oversee criminal investigations without Senate approval, and Garland’s appointment of Smith to oversee Trump’s investigation in November 2022 was therefore unlawful. Prosecutors argued that Congress had empowered the attorney general to appoint “lower-level officials” such as a special counsel.

For decades, Democratic and Republican administrations have appointed special counsels to oversee investigations more independently from the Justice Department. An attorney general may choose to appoint a special counsel due to conflicts of interest.

Previous special counsels or independent investigators (predecessors to special counsels) have been consistently confirmed in court. Cannon nonetheless held a lengthy hearing on Trump’s argument. Cannon also allowed outside groups to argue in court in support of Trump’s argument, which is not common practice in a district court.

Garland has also appointed special counsels to oversee an investigation into President Joe Biden’s retention of classified documents after his term as vice president, as well as two investigations into Hunter Biden, one into a form he filled out to get a gun and another into his tax returns. The investigation, led by special counsel Robert Hur, did not result in charges against the president, but Hunter Biden was convicted in a gun case on June 11 and faces trial in September on tax charges in cases led by special counsel David Weiss.

Case has survived – so far

Trump’s challenge to Smith’s authority is one of several attempts to dismiss the case. For example, Trump also argued that many of the charges should be dismissed because they fell under a law – the Espionage Act – that was too vague to apply to his case.

So far, those efforts have been unsuccessful, although several legal experts have criticized decisions by Cannon that they say violate the law and benefit Trump, such as temporarily banning investigators from reviewing documents before the former president was charged. That decision was overturned by a panel of three Republican-appointed appeals judges in a strongly worded rebuke. Although Cannon rejected Trump’s Espionage Act argument, she left open the possibility for him to raise it again.

Cannon was appointed by Trump and he has praised her since she took over his case.

Cannon postponed the trial indefinitely, another decision widely seen as a Trump advantage. If Trump wins the upcoming presidential election, he could order the Justice Department to halt the proceedings – which many would call a major blow to judicial independence and the rule of law.

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