Judge in Trump classified docs case questions government about funding for special counsel

During a two-hour hearing Monday morning, the judge overseeing former President Donald Trump's classified documents case pressed government attorneys to provide more information about the funding of special counsel Jack Smith's investigation, at one point remarking that the funding presents a "separation of powers concern."

The hearing, conducted by U.S. District Judge Aileen Cannon, was a continuation of Friday's hearing in which defense attorneys sought to have the documents case dismissed on the grounds that Smith was unlawfully appointed as special counsel.

Trump pleaded not guilty last year to 40 criminal counts related to his handling of classified materials after leaving the White House, after prosecutors said he repeatedly refused to return hundreds of documents containing classified information and took steps to thwart the government's efforts to get the documents back. Trump has denied all charges and denounced the probe as a political witch hunt.

Defense lawyer Emil Bove argued Monday that the funding of the special counsel's office was unconstitutional because it relies on a "permanent indefinite appropriation" that is outside of the normal budget process.

"Is there any cap to the funding?" Judge Cannon asked.

"No, and I think that is part of the reason ... to be very wary of who can access it and why," Bove said. "There is no check on the scope of what's going on here."

As Bove hammered at the constitutionality of the special counsel's office, Smith himself sat just feet away in the courtroom, occasionally jotting down notes during the argument. Smith did not attend Friday's hearing.

While Cannon appeared skeptical of Bove's argument at times -- including accusing him of doing a "flip flop" on his position about the independence of the special counsel's office -- she pressed assistant special counsel James Pearce about the office's budget.

"When it's limitless, I think there is a separation of powers concern," Cannon remarked at one point.

Pearce criticized the merits of the defense's argument -- highlighting that the last eight special counsels have been funded and overseen through the same process as Smith's -- but claimed that the Department of Justice would commit to funding Smith's case through the DOJ budget if needed.

"It is the full commitment of the DOJ that the special counsel has the funding to continue this prosecution," Pearce said.

Pearce claimed that the change in funding source would result in "no effect or change whatsoever" to the case.

However, Bove argued that the Department of Justice funding the special counsel would result in a "very strong" response," including congressional action and additional motions from defense counsel.

"It is difficult for me to imagine how that resolves the motion here," Bove said. "I think there would be a very strong political response."

Cannon appeared to backtrack on some of her comments during the hearing, remarking, "I am not indicating anything. I am just trying to cover the scope of what has been briefed here."

Cannon heard arguments Monday afternoon about imposing a gag order on Trump to prohibit statements that endanger law enforcement. Previewing his argument at the end of the morning hearing, Bove described the proposed gag order as "truly extraordinary effort to gag [Trump's] ability to speak at a debate and the campaign trail."