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Experts Slam Judge Cannon for Expanding Hearing on Jack Smith Removal Request

It’s one thing to accept an amicus brief, and another to hear oral arguments from lawyers who aren’t involved in a case.

Former President and Republican presidential candidate Donald Trump arrives at a press conference at Trump Tower on May 31, 2024, in New York City.

U.S. District Judge Aileen Cannon has been accused of entertaining Donald Trump’s every legal defense, no matter how absurd, bogging down the classified documents case she’s had for a year with motions and hearings that would never happen in another court.

Since being randomly assigned the case last June, Cannon has dutifully considered the former president’s every legal argument with the utmost seriousness, repeatedly delaying the case — by far the most serious she’s ever presided over — and recently scrapping the scheduled trial date, citing all the motions she’s allowed to pile up without ruling on, with no sign that she’s anywhere close to setting another.

Instead of tossing the claim aside, as another judge might, Cannon has treated as legitimate the argument that Trump, using only the power of his mind, could unilaterally declassify the nation’s secrets, including battle plans and information on nuclear weapons programs (Trump himself, in a recording obtained by prosecutors, denied he had that power). And she’s treated the defense and prosecution “very differently,” The New York Times reported, chastising the latter for actions that she’s allowed from the former, such as making legal arguments in court that were not first submitted in written form.

But Cannon, even in the eyes of her many critics, has outdone herself with a ruling made public late Tuesday. Now it’s not only Trump’s lawyers who will be arguing on Trump’s behalf: she’s scheduled a hearing where right-wing attorneys will make the argument that it’s actually the Biden administration that broke the law. Set for June 21, the lawyers will argue that it was illegal for the Department of Justice to appoint special counsel Jack Smith to handle Trump’s alleged theft of the nation’s secrets.

It is one thing for a judge to accept an amicus brief, wherein an outside party submits legal arguments relevant to the case, and another to spend time on oral arguments from lawyers who don’t even represent either side.

“The issue is Judge Cannon seems to be just entirely unable — or unwilling — to be normal,” commented Anthony Michael Kreis, a professor of constitutional law at Georgia State University. “She’s not up to the job as far as I’m concerned,” he continued, noting that he’s never seen a district court judge schedule such a hearing for arguments from lawyers not even involved in the case. Cannon, Kreis concluded, “is an absolute hack.”

It’s not like the arguments are novel, either. All the way back in 2018, then-President Trump was raging against special counsel Robert Mueller, who was investigating his campaign’s ties to Russia, declaring that his appointment “is totally UNCONSTITUTIONAL!” At the time, David Sklansky, a professor of criminal law at Stanford University, noted that the U.S. Supreme Court in a 1988 decision ruled that the executive branch does indeed have the right to allocate its powers to an independent counsel, making it not even “remotely plausible” to argue such an appointment violates the Constitution.

It’s also an argument that’s been tried in court multiple times before, all of them unsuccessfully. Paul Manafort, Trump’s 2016 campaign chairman, tried it in his case, CNN noted, and Hunter Biden gave it a shot too.

But it’s one that conservatives are insisting on making, at least with respect to Trump and Smith. “Improperly appointed,” states the amicus brief from Ed Meese, attorney general under President Ronald Reagan and part of the group that will argue in Cannon’s courtroom, “he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”

At a congressional hearing Tuesday, Attorney General Merrick Garland — confronted by Republican lawmakers making the same claims — noted that his office’s ability to appoint special counsels had been in effect for decades now. “The matter that you’re talking about,” he told Rep. Thomas Massie, R-Ky., “has been adjudicated.”

It’s one thing for the arguments to be made in Congress, according to legal experts, and another for them to be treated seriously in a district court.

“The fact these motions are even being entertained with a hearing is itself ridiculous. That third parties are being allowed to opine at the hearing is absurd,” national security lawyer Bradley Moss told CNN.

“Not normal all,” added CNN legal analyst Elliot Williams. “There is literally no reason why the judge needs to have additional folks come in at the oral argument.”

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