Constitutional lawyers ask Cannon to let them back Jack Smith’s authority to prosecute Trump


Jack Smith, on the left; Donald Trump, on the right

Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File); Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York. (AP Photo/Julia Nikhinson, Pool)

UPDATE: Judge Cannon has allowed lawyers for each of the three groups of amici to make oral arguments at the June 21 hearing.

Original story appears below.

A group of constitutional lawyers, former prosecutors, and, in some cases, ex-high ranking government attorneys have asked the judge in the Mar-a-Lago case to let them participate in oral arguments at an upcoming hearing, stating that their collective experience may help the judge see that special counsel Jack Smith has the legal authority to prosecute former President Donald Trump.

The Monday filing from the group of amici curiae — or friends of the court — came the same day that opposing amici, headlined by former Bush and Reagan administration U.S. Attorneys General Michael Mukasey and Edwin Meese, also asked for permission to make oral arguments at a June 21 hearing and referenced a question Justice Clarence Thomas asked during Trump’s Jan. 6 immunity arguments at the Supreme Court. Though the former group wants to back Smith, the latter aims to support Trump’s motion to dismiss on the grounds that Smith was unlawfully funded and unlawfully appointed by U.S. Attorney General Merrick Garland.

While U.S. District Judge Aileen Cannon previously permitted both groups of amici to file briefs, the two sets of amici, as well as amici Seth Barrett Tillman, a law professor, and the Landmark Legal Foundation, have each separately and additionally asked to participate in oral arguments.

The amici we now discuss filed their brief in April, calling the legal argument that Smith was unlawfully appointed “demonstrably incorrect,” as special counsel Smith is an “inferior officer” under the Constitution, not a “principal officer” requiring Senate confirmation (the Meese-led amici and Trump take the opposite view).

The undersigned included 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 Laurence Tribe, to name a few.

In their latest filing, the amici reasserted that they “have an interest in the proper scope of executive power and the faithful enforcement of criminal laws enacted by Congress” and they noted that Cannon previously said in May that any amici who wanted to make oral arguments at the hearing had to seek her permission by June 3.

Acknowledging that the “participation of an amicus curiae in oral argument is uncommon,” the group said Trump’s Espionage Act case meets the “most extraordinary circumstances” in which it would be appropriate to let non-parties argue in court on issues.

“Accordingly, participation by amici could assist this Court in reaching its decision,” the filing said. “Amici draw on their many decades of experience to address the following issues in their brief: (1) whether Special Counsel Smith is an inferior officer whose appointment Congress may vest in the Attorney General, and (2) whether Congress authorized the Attorney General to appoint the Special Counsel.”

Based on the documents, it appears that attorney Matthew Seligman would be the one making their case at the hearing.

As of early Thursday afternoon, Cannon had not yet ruled on the requests.

Special counsel Smith’s position on the issues has been clear since March, when he rejected the Meese-led amici’s arguments as “meritless.”

“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 said.

Read the filing here.

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