The judge overseeing former President Trump’s criminal case over allegedly mishandling classified documents when he left the White House has set a hearing for this month over the legality of special counsel Jack Smith’s selection.
It’s an argument that conservative legal scholars have used to challenge charges brought by Mr. Smith against the former president in two federal cases — the documents case in the Southern District of Florida and the election fraud charges pending in the District of Columbia.
In a docket entry Tuesday, Judge Aileen M. Cannon, a Trump appointee, said legal scholars could appear on June 21 to present arguments over his motion to dismiss the indictment.
In a filing supporting the former president’s move to dismiss the case, some experts argued that Mr. Smith was not properly appointed special counsel by Attorney General Merrick Garland because he wasn’t confirmed by the Senate and is exercising powers beyond his authority.
The argument gained notoriety when President Ronald Reagan’s attorney general and two law professors who clerked for Supreme Court Justice Antonin Scalia challenged Mr. Smith’s authority to prosecute Mr. Trump, saying a private citizen can’t bring criminal charges.
Their argument was made in a filing involving Mr. Trump’s election fraud charges stemming from his challenge of the 2020 election results.
That case is pending while the Supreme Court reviews Mr. Trump’s claim of immunity from criminal charges as president. A decision from the justices is expected by the end of June.
Mr. Smith worked as a U.S. attorney but was living in the Netherlands at the time of his appointment in November 2022, according to reports.
Scholars claim he was a private citizen and improperly prosecuting the former president.
Mr. Smith, meanwhile, has argued he can hold his position as special counsel without Senate confirmation, according to legal documents.
A spokesperson for Mr. Smith didn’t immediately comment on Judge Cannon’s move to set a hearing over the matter.
In Florida, Mr. Trump faces dozens of charges related to allegedly mishandling classified documents when he left the White House and refusing to return them once requested by federal officials.