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Florida judge to decide whether Jack Smith's appointment is constitutional

STEVE INSKEEP, HOST:

OK. A Florida judge hears arguments today in one of the criminal cases against former President Trump.

A MARTÍNEZ, HOST:

Yeah. This is the case of classified documents the FBI recovered from Trump's residence at Mar-a-Lago in Florida. The case is before Aileen Cannon, a judge Trump appointed, and she's been hearing defense motions challenging the case. Trump's lawyers want to make a case today that the search was illegal.

INSKEEP: The lawyers have also contended that special counsel Jack Smith, the prosecutor, was appointed illegally to investigate the ex-president. Josh Gerstein is covering this. He is senior legal affairs reporter for Politico. Josh, welcome back.

JOSH GERSTEIN: Hey, Steve. Good to be with you.

INSKEEP: So I'm just thinking about this. A special counsel was appointed in this case to be a little more independent and avoid any appearance that Trump was being prosecuted by a political opponent, arguably to his benefit. So why would that be illegal?

GERSTEIN: So under the Constitution, the most senior officials in the government are supposed to be nominated by the president and confirmed by the Senate. And Trump's lawyers are claiming that special counsel Jack Smith is wielding so much power and that he's really not under the supervision of the Justice Department and therefore that he, too, should be nominated by the president and confirmed by the Senate and that, therefore, he's acting illegally.

Of course, this argument is in some tension with things Trump himself has been saying publicly, where he claims that Garland is directing Smith to carry out a political vendetta and that he's acting specifically to advance the agenda of President Joe Biden.

INSKEEP: OK. So you said that the argument was that this should go before the Senate like a regular nomination for a cabinet post. There should be a confirmation hearing of some kind. You heard two days of legal arguments about that. What's the pushback?

GERSTEIN: Well, the pushback is that this is a mechanism that the Justice Department set up in the wake of the expiration of the independent counsel law that some of the older listeners might remember was in effect in the '80s and '90s, under which a court panel basically appointed independent counsels to do these kinds of politically charged investigations. Politicians in both parties decided they didn't like that law very much, and they allowed it to expire.

And the Justice Department then stepped in and created its own kind of internal mechanism that lets them appoint officials to do investigations. They're under some supervision by the attorney general, but they're really not subject to oversight from all the other offices in the department that are normally involved in either running or overseeing a criminal investigation.

INSKEEP: OK. So just so I understand this case - Jack Smith - this is being done under Justice Department proceedings. There's not a detailed law that governs what is happening here. Is that what you're telling me?

GERSTEIN: Right. It's being done under 25-year-old regulations that were put in place at the end of the Clinton administration that allow attorneys general to appoint special counsels when they think it's a case that may present some kind of conflict of interest for the department.

INSKEEP: OK. And we will continue listening today as there are arguments over the legality of the search of Trump's home at Mar-a-Lago. Josh Gerstein of Politico, thanks very much for the update. I really appreciate it.

GERSTEIN: Thank you. Nice to be here. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.