A federal judge in Florida this week will hear arguments over whether special counsel Jack Smith has the authority to charge former President Donald Trump over his alleged mishandling of classified documents.
Friday’s hearing before U.S. District Judge Aileen Cannon, a Trump appointee, will feature arguments from legal scholars over the legality of Mr. Smith’s selection as special counsel.
Conservative legal scholars have made the argument to challenge charges brought by Mr. Smith against Mr. Trump in the documents case in the Southern District of Florida and the pending election fraud case in the District of Columbia.
Some experts have said in briefs supporting motions to dismiss the cases that Attorney General Merrick Garland improperly appointed Mr. Smith, noting that the special counsel was not confirmed by the Senate and arguing that he is exercising powers beyond his authority.
The argument gained attention when President Ronald Reagan’s attorney general and two law professors who clerked for late Supreme Court Justice Antonin Scalia challenged Mr. Smith’s authority to prosecute Mr. Trump, saying a private citizen can’t bring criminal charges.
Mr. Smith worked as a U.S. attorney but was living in the Netherlands at the time of his appointment in November 2022, according to reports. He has argued he can hold his position as special counsel without Senate confirmation, according to legal documents.
The hearing on Friday follows Judge Cannon’s rejection of a request from red state attorneys general to file a brief supporting Mr. Trump’s opposition to Mr. Smith’s pursuit of a gag order in the case.
About two dozen Republican attorneys general had argued that Mr. Trump should not be subject to a gag order due to First Amendment concerns about the election in November.
“Amici States each stand to suffer the harms identified in the brief if a gag order is imposed on President Trump. That order may affect the election, the First Amendment rights of tens of millions of Americans, and will prevent President Trump from opining on this important national election matter,” they wrote. “Free and fair elections in the United States depend on candidates’ ability to speak about important issues of the day.”
Judge Cannon on Monday did not give a reason for denying their move to file an amicus brief.
Mr. Smith has pushed the judge to gag the former president from making comments that could be inflammatory about law enforcement or impede the federal investigation.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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