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Judge presses prosecutors over Jack Smith’s funding as Trump’s lawyers try to buck Florida indictment

Judge Aileen Cannon told prosecutors Smith's funding could raise "separation of powers concerns" when mulling the dismissal motion from Trump's attorneys.

FORT PIERCE, Fla. (CN) — Things got tense for federal prosecutors on Monday when U.S. District Judge Aileen Cannon pressed them for details on special counsel Jack Smith’s funding. 

The hearing — the first of two on Monday in Donald Trump’s classified documents case — fielded a dismissal motion from Trump’s lawyers, who claimed Smith was improperly receiving funds from the United States government to carry out his case against the former president.

It’s one of several last-ditch efforts from Trump’s legal team to drop the indictment, in which Trump's accused of stashing classified documents at his Mar-a-Lago residence after losing the 2020 presidency and bucking federal efforts to recollect them.

Trump’s attorney Emil Bove said Monday that prosecutors contradicted themselves when they argued last week that Smith was not truly “independent” from the Justice Department. If that’s true, Bove said, then Smith shouldn’t be getting the federal funding driving his case.

Bove told Cannon to reject arguments from prosecutors that Smith is still lawfully an independent counsel being rightfully driven by congressional-approved funding.

“Both cannot be true,” Bove argued, agreeing that there is a “mismatch in the degree of independence” that prosecutors are claiming of Smith.

But prosecutor James Pearce held that the “mismatch” Bove claimed is actually intrinsic to the position of special counsel. 

“It is inherent,” Pearce said, arguing that such a balance is necessary to ensure both “accountability and independence” for special counsel.

Pearce cited numerous other instances in which special counsel was funded using the same mechanism Trump’s lawyers are now scrutinizing. He told the court to acknowledge that Smith, who was in attendance Monday seated behind the prosecutors’ table, was receiving funding that was “consistent with longstanding Justice Department practice.”

Instead, Cannon pushed Pearce on the specifics of Smith’s spending. She asked why it takes so long for Smith’s office to publish expenditure reports and demanded to know how much funding they billed so far.

Pearce said he didn’t have those numbers on hand and told the judge that he wasn’t aware of any other court deeming that information relevant in an appropriations motion like this one. After all, the defense’s motion to dismiss dealt with the source of Smith’s funding, not the amount.

Cannon, insisting that Smith’s spending could raise “separation of powers concerns,” chided Pearce for interrupting her and instructed him to move on. She didn’t immediately issue a ruling following the hearing.

Monday’s hearing was a continuation from last week, in which Trump’s lawyers tried to get the case dropped on the grounds that Smith’s appointment was unlawful. Bove said Monday that, in both hearings, the defense’s stance is consistent in demanding more oversight from Congress.

“Our position is that more oversight from Congress is required for the extraordinary things that are happening in these proceedings,” Bove said, suggesting that such oversight has “fallen apart” in Smith’s case.

Cannon, whom Trump appointed in 2020, will oversee another hearing Monday afternoon where prosecutors will argue in favor of a gag order on the former president. The Colombian-born judge has already stirred controversy in the case after she delayed the proceedings indefinitely last month.

She also kneecapped federal investigators in 2022 by requiring them to run the seized documents through a third party before using them in the case. That ruling was quickly overturned in the 11th Circuit, however.

It was also revealed earlier this week that Cannon rejected suggestions from fellow South Florida judges to step aside in the case altogether, according to a report from The New York Times.

Smith’s case against Trump stems from a 37-count indictment he brought in June 2023. Following a superseding indictment, Trump is now charged with 40 counts: 32 counts of wilful retention of national defense information under the Espionage Act, seven obstruction counts and one count for making false statements.

Also charged in the case alongside Trump are two of his employees: Mar-a-Lago’s property manager Carlos de Oliveira and Trump’s valet and body man Walt Nauta.

Trump has pleaded not guilty to all counts. He was not in attendance for Monday’s hearing.

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Categories / Criminal, National, Politics

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