CNN
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Judge Aileen Cannon is again ripping up the court schedule in former President Donald Trump’s classified documents case – pushing some of the legal questions that have been before her for months even further down the road.
Cannon is planning on holding a sprawling hearing on Trump’s request to declare Jack Smith’s appointment as special counsel invalid, signaling she could be more willing than any other trial judge to veto the special prosecutor’s authority.
The planned hearing also adds a new, unusual twist in the federal criminal case against the former president: Cannon on Tuesday said that a variety of political partisans and constitutional scholars not otherwise involved with the case can join in the oral arguments later this month.
It’s an extraordinary elevation of arguments in a criminal case – filed a year ago this week – that likely won’t see trial until next year, if at all.
Wednesday, Cannon went further, adding a hearing on a gag order request from prosecutors to limit Trump’s rhetoric about law enforcement and allotting more time to hear arguments on the special counsel issue.
Cannon will hear arguments on those issues the week of June 21, as well as on the effort by Trump to throw out evidence in his case that was gathered by the FBI in its 2022 search of Mar-a-Lago or provided by his former attorney Evan Corcoran to a grand jury.
At the same time, she delayed other hearings without setting a new date.
The calendar shuffling is the latest example of Cannon’s approach so far to the national security case: scheduling hours in court for arguments that other courts have mostly denied, and pushing off resolution of various legal matters for months.
The delays are a significant legal win for Trump, who also scored a major victory in Georgia on Wednesday, where the state court of appeals put the election subversion conspiracy case there on hold indefinitely.
Similar challenges from Trump and other high-level targets of special counsel probes have flopped from coast to coast in recent years: Hunter Biden’s attorney didn’t get anywhere with judges in Los Angeles and Delaware; Paul Manafort’s arguments fell flat when the former Trump campaign chairman challenged special counsel Robert Mueller’s authority; and Andrew Miller, a former associate of Roger Stone, also lost his challenge to Mueller’s authority.
Even with other federal trial-level judges allowing special counsels’ criminal prosecutions, Cannon could rule differently.
Cannon’s signal of willingness to entertain challenges to the special counsel comes in the same week Republicans are bearing down on Attorney General Merrick Garland for his use of special counsels.
The issue, now before Cannon in the Southern District of Florida federal court, is likely to remain in the political debate at least until Cannon holds a hearing on the legal power of the special counsel to prosecute a defendant, on June 21.
Cannon has already taken a drastically different tack from other trial-level federal judges who have handled criminal cases charged by recent special counsel’s offices – of which there have been five since Trump became president.
While others have moved swiftly to trial – including special counsel David Weiss trying his case against Hunter Biden in Delaware this week, eight months after indictment – Cannon has moved slowly on pre-trial issues from Trump and his two co-defendants. Many of the most substantive legal questions to be decided in the classified records case, which the Justice Department first brought against Trump last June, aren’t yet ripe for a decision.
And it is highly unusual for a federal trial judge to allow a third-party group unaffiliated with a criminal case to argue in court as part of a defendant’s legal challenges to the case itself. That work is essentially reserved for defendants’ teams to bring and argue in courts across the country, opposite Justice Department prosecutors. Allowing third parties to argue in court is even rare in appeals situations.
“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,” Bradley Moss, a national security law expert based in Washington, DC, told CNN.
But Cannon has been convinced by three separate groups of lawyers that they should be able to argue before her. Two of those groups support Trump’s position to dismiss the case against him and say the special counsel, for various constitutional reasons, doesn’t have authority to prosecute. A third group says the Department of Justice’s use of a special counsel should be upheld.
Two former Republican-appointed US attorneys general, Edwin Meese and Michael Mukasey, are part of the groups of so-called “friends of the court” that side with Trump and whom Cannon will hear from. The three groups will be allowed to argue, in addition to Justice Department and defendants’ lawyers, for 30 minutes each, according to the court record.
Meese and Mukasey have special insight to share with the judge, they say, given their former roles leading the Justice Department.
Meanwhile, Cannon on Wednesday delayed a previously scheduled multi-day proceeding where Trump’s team wanted to question federal government officials under oath about how they conducted the investigation.
Trump’s legal team is angling to convince the judge to force the government to turn over more records from far-flung offices of the executive branch. The special counsel’s office argued to Cannon in person months ago that making federal government officials witnesses at this stage of the case – as Trump wants – would be an unprecedented exploitation of the court.
Cannon still agreed to the hearing Trump wanted. But that hearing is no longer on the schedule.
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This story has been updated with additional developments.
