Judge Cannon is about to hold a bizarre series of hearings in Florida

Lothar Speer

It appears likely that the Supreme Court will release its decision on whether the former president is immune from criminal prosecution as close to the end of the term as possible, foreclosing the possibility of a trial in the federal election interference case before November’s election. In Georgia, the state case which addresses the same conduct, an appeals court has put all proceedings on hold while they address whether Judge McAfee was correct to say that Fani Willis needn’t recuse herself after it was revealed that she was romantically involved with a colleague she’d hired to lead the case. Which leaves us with Florida and the case brought against the former president for unauthorized retention of national defense information and obstruction of efforts to get it back.

As we reported back in May, Judge Cannon indefinitely postponed trial in that case, and scheduled a number of unnecessary hearings on a variety of issues, based largely around a flurry of frivolous motions submitted by the defense. Here’s what the calendar looks like for the rest of June:

Friday, June 21: non-evidentiary hearing on motion to dismiss the indictment based on unlawful appointment and funding of Jack Smith.

This hearing was called in response to a motion filed by the defense way back on February 22, arguing that Jack Smith’s appointment violated the Appointments Clause of the Constitution. In fact, the motion goes as far as to suggest that the very creation of the Office of Special Counsel – in any case – violates the clause. 

The argument largely repeats that made by former Attorney General Edwin Meese, who has submitted amicus briefs on this topic to various courts for years, stretching back to the Mueller investigation. When Meese deployed this strategy in 2018, Neal Katyal, who helped to write the Special Counsel regulations, published an article in Time, debunking Meese’s line of thinking: “…virtually no one believes the appointment of the Special Counsel is unconstitutional, and there has been a long-standing bipartisan consensus to the contrary.” 

Worryingly, Judge Cannon has permitted Meese to participate in the hearing on June 21, so his lawyer will be able to present the former AG’s argument to the judge for her consideration. A group of Constitutional lawyers, former government officials, and State Democracy Defenders Action has also been allowed to participate, arguing that Jack Smith was properly appointed. But the fact that the argument that he wasn’t is being taken seriously is concerning in itself. The hearing is expected to take all day and Judge Cannon has signaled that it may just be the beginning, leaving the door open for “further factual development.”

Monday, June 24 (am): hearing on the Appropriations Clause challenge as raised by defendant Trump’s motion to dismiss based on the unlawful appointment and funding of Special Counsel Jack Smith.

Within the defense motion to dismiss the indictment that was filed in February, there was a further argument made that the funding of the Office of Special Counsel was also unlawful. The hearing on this subject takes place at 10am and is scheduled to last all morning.

Monday, June 24 (pm): hearing on Special Counsel’s motion for modification of conditions of release.

After the former president began suggesting that the FBI was attempting to “take him out” during the execution of a search warrant at Mar-a-Lago, the Special Counsel requested that he be placed under a gag order “to make clear that he may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.” The hearing during the afternoon of Monday, June 24 will see the prosecution arguing for the imposition of a gag order, with the defense arguing against. 

Tuesday, June 25: a sealed session will take place, where Trump’s defense team will claim that attorney-client privilege was “unlawfully” pierced when a judge in D.C. ruled that notes from his former lawyer, Evan Corcoran, could be provided to the Special Counsel’s office under the crime-fraud exception.

The fact that Judge Cannon is even holding this series of hearings is concerning. Many of the issues raised are frivolous and should have been decided purely on the filings submitted by both parties. And in the middle of all this back and forth in Florida, we might get the immunity decision. There’s a lot going on this June…