Trump seeks to dismiss documents case
Lawyers raise presidential immunity claim as they attack law, special counsel
Lawyers for former President Donald Trump launched a flurry of attacks late Thursday against the federal charges accusing him of illegally holding on to classified documents after he left office, filing more than 70 pages of court papers seeking to have the case thrown out.
In four separate motions to dismiss the case, Trump’s lawyers made a barrage of legal arguments in seeking to circumvent a criminal case that many legal experts consider the most ironclad of the four against him. They attacked the law he is accused of violating, questioned the legality of the special counsel prosecuting him and argued that he is shielded from prosecution by presidential immunity.
Some of the arguments flew in the face of prior court rulings.
In one motion, Trump’s lawyers claimed that he was immune from prosecution on the classified documents charges even though a federal appeals court roundly rejected that argument this month when he sought to use it in a separate case, in which he stands accused of plotting to overturn the 2020 election.
Trump’s claims of immunity have always rested on the theory that he could not be charged for any actions he undertook as president. And his lawyers sought to argue in their motion that he should not be prosecuted for moving dozens of classified records from the White House to Mar-a-Lago, his private club and residence in Florida, because his initial decision to do so was made while he was in power.
But that line of reasoning seemed largely intended to get around the text of the law — the Espionage Act — that prosecutors have accused him of violating. Trump has been charged specifically with willfully retaining the classified documents, and prosecutors say that his purposeful retention of the records continued for many months after he left office, ending only in August 2022 when FBI agents, executing a search warrant, seized them at Mar-a-Lago.
In a separate motion, Trump’s lawyers sought to poke holes in different sections of the Espionage Act, saying that certain phrases of the law were “unconstitutionally vague as applied to President Trump.”
The law, for instance, makes it a crime to have “unauthorized possession” of documents “relating to the national defense.”
Trump’s lawyers appeared to be arguing that presidents were always authorized to be in possession of national security files. They also claimed that the definition of “national defense” records was so broad and ambiguous that no one could possibly know what the phrase meant.
In their third motion, Trump’s lawyers went after Jack Smith, the special counsel overseeing the two federal cases against Trump, claiming that he was unlawfully appointed to his post.
The lawyers advanced an untested argument: that under the Constitution, Attorney General Merrick Garland should have gotten Senate confirmation for Smith’s appointment in November 2022. Without that, the lawyers wrote, “Jack Smith lacks the authority to prosecute this action.”
Finally, Trump’s lawyers filed a motion reprising an argument that they — and their client — have made repeatedly since well before the indictment in the case was returned in June: that under the Presidential Records Act, Trump had the “unreviewable discretion” to “designate the records at issue as personal,” meaning that the documents were not unauthorized at all, but instead belonged to him.
Legal experts have questioned this expansive interpretation of the Presidential Records Act, saying that the law was put in place after the Watergate scandal for precisely the opposite reason. It was meant to ensure that the U.S. government, not an individual president, has control over most presidential records.
Trump’s lawyers promised in a court filing earlier this week to file as many as 10 motions to dismiss. But at the last minute, Judge Aileen Cannon, who is overseeing the case, granted them a brief delay as they sought permission to file some of the papers partially under seal.
The lawyers sent the partially sealed motions to Cannon privately Thursday night and could file redacted public versions of them by early next month. Those motions, Trump’s lawyers said in yet another court filing, will include one seeking to suppress evidence seized during the FBI’s search of Mar-aLago and another accusing members of Smith’s team of prosecutorial misconduct.