Cannon lets former Scalia clerk, law prof, and attorney for anti-Trump coalition argue in court


Aileen Cannon, Jack Smith

Judge Aileen Cannon, pictured left (U.S. District Court for the Southern District of Florida), (right) special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)

The judge in the Mar-a-Lago case has officially permitted attorneys for three separate groups of amici curiae, or friends of the court, to participate in oral arguments for and against the constitutionality of Jack Smith’s appointment as special counsel at an upcoming hearing on Espionage Act defendant Donald Trump’s motion to dismiss the case.

The brief order issued later Tuesday by U.S. District Judge Aileen Cannon allowed roughly 30 minutes of argument each on June 21 for South Texas College of Law Professor Josh Blackman, attorney Gene Schaerr, a former clerk to Justice Antonin Scalia representing ex-Bush and Reagan administration U.S. Attorneys General Michael Mukasey and Edwin Meese, and Matthew Seligman, an attorney representing an anti-Trump coalition of constitutional lawyers and former high-ranking government officials.

The order:

PAPERLESS ORDER granting Motions for Leave to Participate in Oral Argument as Amici Curiae 590 598 601 . The representatives designated in the respective filings (Josh Blackman, Gene C. Schaerr, and Matthew Seligman) will be permitted to appear on behalf of amici curiae and present oral argument at the June 21, 2024, hearing on Defendant Trump’s Motion to Dismiss the Indictment Based on the Unlawful Appointment of Special Counsel Jack Smith 326 . Approximately 30 minutes reserved for each. Seating to be reserved for representatives presenting argument. Signed by Judge Aileen M. Cannon on 6/4/2024. (jf01) (Entered: 06/04/2024)

As Law&Crime has reported, the amici were earlier granted leave to file briefs for and against Trump’s motion to dismiss. Trump maintains that Smith is unlawfully funded and unlawfully appointed as special counsel. In May, Cannon invited the non-parties to the case to request permission to participate in oral argument at the hearing provided that they made those requests by June 3. Each party did so.

As a result, Blackman, a constitutional law professor, will appear on behalf of law professor Seth Barrett Tillman and the Landmark Legal Foundation to make the case that Smith is not an “officer of the United States,” but a “mere ’employee’” whose “appointment is inconsistent with the separation of powers and political accountability.”

Schaerr will take the position that the special counsel is a “principal officer” whose appointment by U.S. Attorney General Merrick Garland required Senate confirmation, not an “inferior officer” under the Constitution. These amici also include Federalist Society co-founder and Northwestern University law professor Steven Calabresi, Boston University law professor Gary Lawson, and the group Citizens United.

“Smith does not have authority to prosecute this case,” their brief argued. “Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. But neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. He wields tremendous power, answerable to no one. And that is a serious problem for the rule of law — whatever one may think of former President Donald Trump or the conduct Smith challenges in the underlying case.”

Seligman will be the lone attorney other than Smith to make the argument that the special counsel was lawfully appointed and is an “inferior officer” whose “appointment Congress may vest in the Attorney General” and who still answers to — and may be removed by — Garland despite his independent role. Seligman is representing Donald Ayer, former U.S. deputy attorney general under then President George H.W. Bush, conservative lawyer and Trump critic George Conway, former U.S. Attorney Patrick Fitzgerald, former Acting U.S. Attorney General Stuart Gerson, Watergate era prosecutor Philip Lacovara, former FEC Chairman Trevor Potter, former New Jersey Gov. Christine Todd Whitman, and Harvard law professor emeritus and Trump critic Laurence Tribe.

Smith, for his part, has called Trump’s move to dismiss the case on these grounds recycled and doomed to fail.

“Neither Trump’s challenge nor the Meese Amicus’s additional theories are novel or meritorious; to the contrary, every court that has considered them has rejected them — including authoritative decisions by the Supreme Court,” Smith wrote in March.

“Under governing authority, the Special Counsel is an ‘inferior Officer’ who may be appointed by the head of a department because he is subject to supervision and oversight by the Attorney General,” he added. “That conclusion is confirmed by cases addressing prosecutors vested with authority comparable to the Special Counsel.”

In late May, Cannon additionally “directed” Trump’s defense and Smith to file briefs by June 11 on “what impact, if any, the Supreme Court’s decision in Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd.” has on the defendant’s claims that Smith is unlawfully funded.

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