Left: Special Counsel Jack Smith. (AP Photo/J. Scott Applewhite, File); Center: Judge Aileen M. Cannon (U.S. Senate); Right: Former President Donald Trump. (AP Photo/Charlie Neibergall, File)
The judge overseeing the Mar-a-Lago documents case on Friday gave former President Donald Trump and special counsel Jack Smith a few days of additional time to submit one final document in a long-running dispute that has taken up substantial time, docketing, and motions practice during pretrial proceedings in the high-profile legal battle.
In a terse, “paperless minute entry,” following a four-hour-long hearing, U.S. District Judge Aileen Cannon directed both parties to take their final stab at Trump’s motion to dismiss the indictment based on the theory that Smith was unlawfully appointed to his position.
“On or before June 24, 2024, Defendant Trump and the Special Counsel each may file a separate notice of supplemental authority, not to exceed five double-spaced pages, with any discrete citations to statutory or decisional authority,” the order reads. “The notice(s) shall be prepared in list/bullet form with citations only, and without advocacy, although appropriate headings are permitted for organizational purposes.”
The Trump-appointed judge’s order extending the long-shot dismissal bid into next week was just one of many Friday developments in the serially delayed case against the 45th president.
In that same order, Cannon also, finally and for good, shut down the efforts of other parties to speak to the matter further.
“The Court also heard argument from three groups of non-party amici curiae authorized to appear via prior order,” the judge observed before ruling: “No further filings from amici will be accepted.”
During the hearing, the court heard oral arguments from pro-Trump South Texas College of Law Professor Josh Blackman, pro-Trump attorney Gene Schaerr, and anti-Trump attorney Matthew Seligman.
As Law&Crime previously reported, some 30 minutes were allocated for each lawyer to argue on behalf of three groups of amici curiae, or friends of the court, on the merits for-and-against the idea that Smith was improperly appointed in violation of the U.S. Constitution.
Blackman represented Irish law professor Seth Barrett Tillman and the Landmark Legal Foundation; Schaerr represented ex-Bush and Reagan administration U.S. Attorneys General Michael Mukasey and Edwin Meese; Seligment represented an anti-Trump coalition of constitutional lawyers and former high-ranking government officials.
More Law&Crime coverage: Mar-a-Lago judge allows former Scalia clerk, law professor, and attorney for anti-Trump coalition to argue in court over Jack Smith’s power to prosecute
Tillman and Landmark were also shut down on two other attempts to continue their advocacy this week. Cannon, on Thursday, denied a motion requesting electronic filing access to expedite their efforts. On Friday, the judge denied an amici motion requesting the ability to file their own notice of supplemental authority — the same kind of filing Smith and Trump both have until Monday to put on the record.
Still, the apparent judicial expediency is literally only half the story.
Trump’s motion to dismiss the indictment over the contours of Smith’s appointment actually raises two discrete legal issues: (1) whether the special counsel was properly hired to prosecute Trump under the appointments clause; and (2) whether his office was properly funded under the appropriations clause.
And, on that second issue, the court still has yet to hear an argument.
As Law&Crime previously reported, a multi-day hearing slated for June 24-26 was supposed to be something of an omnibus affair to dispense with both arguments as well as a Trump motion to dismiss the case on a theory of selective and vindictive prosecution.
Now, the appropriations issue will be discussed during a 10 a.m. hearing on June 24. That hearing will be followed by a 3 p.m. hearing on Smith’s motion to modify the conditions of Trump’s pretrial release by instituting a gag order. The next day, on June 25, the court will hold a hearing on Trump’s Fourth Amendment motion for relief related to the Mar-a-Lago raid and attorney-client privilege issues.
Smith filed his response in the gag order dispute on Friday as well.
In that filing, the special counsel called out Trump for telling his online audience that “the FBI was out to kill him and his family.”
To hear the government tell it, the court should prohibit further such statements because they “pose a significant, imminent, and foreseeable danger to the law enforcement professionals involved in the case” and are not protected under the First Amendment.
Have a tip we should know? [email protected]
