Donald Trump's lawyer argued Friday that the criminal case charging the former U.S. president with mishandling classified documents should be thrown out because the prosecutor is too independent.
At a hearing in a federal court in Florida, Trump lawyer Emil Bove pressed U.S. Judge Aileen Cannon to dismiss the case because Special Counsel Jack Smith is not subject to the constraints that other federal prosecutors must face.
"Jack Smith does not have a superior who is operating with sufficient oversight authority over his decisions right now," Bove said.
That argument has not succeeded in other cases involving special counsels, who have been appointed in Democratic and Republican-led administrations alike to ensure a degree of autonomy in politically sensitive cases.
But Cannon, a Trump appointee, has ruled in favor of the Republican presidential candidate in previous skirmishes and has allowed a flurry of motions by his legal team to slow the case to a crawl. It is unlikely the case will reach a jury before Trump and Biden face voters in the Nov. 5 election.
In a rare move, Cannon has allowed three outside lawyers, including two siding with Trump, to argue during Friday’s hearing. Neither Trump nor Smith attended the heading.
Hearings in the case will continue on Monday and Tuesday.
The hearings mark the first time Trump's legal team has appeared in court since he was convicted on 34 felony counts in May of falsifying business records in New York.
Trump’s legal challenge is part of a multi-pronged attack on Smith, whom he has called “deranged” and a “thug” on social media. Smith, a veteran public corruption prosecutor who worked on war crimes cases in The Hague, was named by Attorney General Merrick Garland in 2022 to lead the investigations into Trump.
Smith oversees the classified documents prosecution and a second criminal case in Washington accusing Trump of attempting to overturn his 2020 election defeat.
That case likewise has been delayed as the U.S. Supreme Court considers his claims of presidential immunity. It is expected to issue a ruling by the end of June, but did not do so on Friday.
Trump has pleaded not guilty in both of those cases and a separate election-interference case in Georgia.
He has frequently claimed that his four criminal cases stem from a coordinated effort by Biden's Democrats to hobble his presidential bid.
But Bove argued Friday that Smith's appointment is illegitimate because he operates with too much autonomy.
As special counsel, Smith operates with a greater degree of independence than other federal prosecutors. But Justice Department lawyer James Pearce told Cannon that Smith's independence is not absolute, as Garland has the power to overrule him.
Trump's lawyers are also arguing that Smith did not have the authority to bring the charges because he was not confirmed by the Senate and his office was not created by an act of Congress. Trump’s defense is also challenging the mechanism funding the prosecution.
Trump's lawyers face an uphill battle as they challenge the special counsel appointment, as courts have previously rejected challenges to their authority, most recently in cases involving Biden’s son Hunter, who was found guilty this month on gun charges.
Trump has not raised the same challenge to Smith in the election case in Washington, where judges would be bound by prior rulings in prior challenges to special counsel.
The hearings will also address Trump’s bid to suppress evidence seized during an FBI search of his Mar-a-Lago resort and Smith’s request to bar Trump from making statements that may endanger law enforcement. That stems from Trump's baseless claim that a standard FBI use-of-force policy filed ahead of a search of his Florida property was an authorization to assassinate him.
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