Trump rejects Jack Smith's authority in classified documents case hearing

In former President Donald Trump's latest bid to get criminal charges over his handling of classified documents tossed out, one of his lawyers argued at a Friday hearing that special counsel Jack Smith wasn't authorized to bring the case.

"Jack Smith does not have a superior who is operating with sufficient oversight authority over his decisions right now," Trump lawyer Emil Bove told U.S. District Judge Aileen Cannon, who set aside Friday to hear Trump's challenge to special counsel Jack Smith's appointment in the case.

Smith was appointed by Attorney General Merrick Garland in November 2022 to oversee the investigation into Trump's post-White House retention of classified documents and 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, D.C. based on the election interference investigation.

Justice Department lawyer James Pearce said at the hearing that Smith still faces oversight because Garland can weigh in on important decisions and even overrule the special counsel is necessary.

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

Trump is charged with mishandling classified documents, including by willfully retaining national defense information such as documents on U.S. and foreign military capabilities after his presidency.

Trump argues special counsels are unlawful

In a motion ahead of Friday's hearing, Trump's team argued that Garland lacked authority to appoint a special counsel to oversee any criminal investigation without Senate approval, and that Garland's appointment of Smith to oversee Trump investigations in November of 2022 was therefore unlawful. Prosecutors have argued that Congress has empowered the attorney general to appoint "inferior officers" such as a special counsel.

Special counsels have been appointed for decades by Democratic and Republican administrations to oversee investigations with greater independence from the Justice Department. An attorney general may decide to appoint a special counsel based on conflict-of-interest concerns.

Previous special or independent counsels (a precursor to special counsels) have been consistently upheld in court. Cannon nonetheless held a lengthy hearing on Trump's argument. Cannon also allowed outside groups to argue before the court in support of Trump's argument, which is not standard 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 he was vice-president and two investigations into Hunter Biden, one dealing with a form he filled out to get a gun and another dealing with his tax filings. The investigation headed by special counsel Robert Hur didn't result in charges against the president, but Hunter Biden was convicted June 11 in a gun-related case and faces trial on tax charges in September in cases headed by special counsel David Weiss.

Case has survived – so far

Trump's challenge to Smith's authority is one of several bids he has made to get the case dismissed. For instance, Trump has also argued that many of the charges should be dismissed because they fall under a law – the Espionage Act – that is too vague to be applied in his case.

So far those efforts have been unsuccessful, although several legal experts have criticized decisions by Cannon that they say contravene the law in ways that are favorable to Trump, such as temporarily blocking investigators from reviewing documents in advance of the indictment against the former president. That decision was reversed by a panel of three Republican-appointed appellate judges in a sharply-worded rebuke. Although Cannon rejected Trump's Espionage Act argument, she left the door open for him to raise it again.

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

Cannon indefinitely postponed a trial, another decision widely viewed as favorable to Trump. If Trump wins the upcoming presidential election, he could ? in what many say would be a significant blow to judicial independence and the rule of law ? order the Justice Department to drop the case.

Cannon is also slated to hear arguments on Monday and Tuesday over Trump's challenge to funding for the investigation, Smith's request to block Trump from saying the FBI was authorized to shoot him during a raid of his Mar-a-Lago club, and Trump's request to block prosecutors from using documents seized during the raid.

Contributing: Reuters; Bart Jansen

This article originally appeared on USA TODAY: Trump challenges Jack Smith's authority in classified documents case