Will Trump ask for dismissal of classified documents charges based on immunity ruling? It’s possible, and here’s why

Republican presidential candidate, former U.S. President Donald Trump participates in the CNN Presidential Debate at the CNN Studios on June 27, 2024 in Atlanta, Georgia.

For special counsel Jack Smith, one thing is certain about the case he brought against former President Donald Trump for allegedly mishandling classified government documents: The nation’s top court has served up fresh grounds for the defense to seek a dismissal.

On Monday, the U.S. Supreme Court ruled 6-3 that Trump is entitled to broad immunity from prosecution on charges of trying to overturn the last presidential election. The immediate impact is expected to be in the form of more delays in Smith’s election interference case in Washington against Trump as the presiding judge moves to apply the high court’s ruling to the case by stripping out some of the government’s charges now covered by the immunity ruling.

In the meantime, Trump’s lawyers have filed a letter with the New York judge who presided over his hush money trial to set aside the conviction and delay his sentencing, which is scheduled for July 11, according to The Associated Press. As of early Tuesday, there was no immediate action by Trump’s legal team to use the Supreme Court ruling to toss the state of Georgia election case or the federal classified documents case before U.S. District Judge Aileen Cannon in Florida.

“Of all of the cases where this arguably would apply, it’s the weakest case,” David Weinstein, a former federal prosecutor and a Miami criminal defense lawyer, said of the documents case. ”What he was alleged to have done is after he left office and was no longer the president.”

Any post-presidential act that occurred after Jan. 21, 2021 — moving or taking documents, or obstructing the government investigation to retrieve them — would not fall under the protection of immunity “because [Trump] is no longer committing an official act.”

“That’s not going to stop them from filing the motion,” Weinstein added. “That’s not going to stop Judge Cannon from holding a hearing and writing an opinion that agrees with Trump.”

Trump was charged in June 2023 in a 40-count superseding indictment with mishandling classified documents related to national security after he left office. Among other things, he is alleged to have shown documents to people who were not authorized to view them. Two of his employees, personal valet Waltine Nauta and Mar-a-Lago property manager Carlos De Oliveira, are accused of helping Trump impede the return of documents to federal law enforcement agents who sought to retrieve the materials from Mar-a-Lago, Trump’s Palm Beach estate.

All three men have pleaded not guilty.

Last February, Trump’s lawyers added presidential immunity to his long list of reasons why Cannon should dismiss the case while filing multiple motions to dismiss on a variety of other grounds.

They urged Cannon, who is presiding over the case in Fort Pierce, to bypass a “poorly reasoned decision” by the U.S. Court of Appeals for the D.C. Circuit that rejected Trump’s claim that former presidents have absolute immunity for taking actions considered to be within their official job duties.

They argued that while president, Trump designated the papers as “personal” under the Presidential Records Act, and said he cannot be prosecuted because the designation was an “official act” he made while still in the White House.

“Specifically, President Trump is immune from prosecution on Counts 1 through 32 because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act (‘PRA’) and to cause the records to be moved from the White House to Mar-a-Lago,” the February motion to dismiss based on immunity read. “The alleged decision was an official act, and as such is subject to presidential immunity.”

But in April, Cannon rejected the records act argument, saying it “does not provide a pre-trial basis to dismiss” either the mishandled documents charges or the charges that Trump tried to frustrate federal attempts to retrieve the government’s classified papers.

Still, the defense insisted in its motion to dismiss that Trump made decisions about the documents’ handling and transportation to Florida while he was still in office, prior to Jan. 21, 2021.

“The special counsel ’s Office concedes that the ‘genesis’ of this case dates back to at least ‘the tail end of the Trump Administration itself,'” the motion says.

An argument worth raising

Robert Jarvis, a law professor at Nova Southeastern University in Davie, noted that Trump has argued he took the documents “on his way out of the White House” and that his lawyers could argue “that this comes under the presumptive standard the [Supreme Court] found.”

“I think that this is worth a discussion,” he said. “It’s fair to say before we go on we need to figure this out.”

Jarvis acknowledged he is “no fan” of Cannon, joining the large group of legal community critics who assert she has “slow-walked” the documents case by delaying numerous rulings, thus playing into the hands of a defense determined to delay the start of a trial past the November presidential election. It is a strategy, critics say, that would enable Trump to use his authority to sweep aside the charges against him if he is re-elected to the White House.

“This is the perfect cover for Cannon,” Jarvis said. “She can say, ‘I am dismissing the case based on what the U.S. Supreme Court did, and if you don’t like it, Jack Smith, go up to the 11th Circuit.'”

Wild card from Thomas

While most of the public and media focus on Monday concentrated on the Supreme Court’s broadening of presidential immunity, Justice Clarence Thomas unexpectedly addressed an issue raised by the defense in the classified documents case just last month but not mentioned by other justices: The validity of Smith’s appointment as special counsel by Attorney General Merrick Garland and the funding of his office.

In his opinion concurring with the high court’s majority on the immunity question, Thomas raised the special counsel appointment as an item of concern. He argued that the special counsel’s office must be established by Congress and that Smith required Senate confirmation before he could take office.

“If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote. “A private citizen cannot criminally prosecute anyone, let alone a former President.”

Thomas did not mention the documents case in his opinion.

“We cannot ignore the importance that the Constitution places on who creates a federal office,” Thomas wrote. “To guard against tyranny, the Founders required that a federal office be ‘established by Law.’ As James Madison cautioned, ‘[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices … If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.”

“And, there are serious questions whether the Attorney General has violated that structure by creating an office of the special counsel that has not been established by law. Those questions must be answered before this prosecution can proceed,” Thomas wrote of the election interference case. “The lower courts should thus answer these essential questions concerning the special counsel ’s appointment before proceeding.”

In her Fort Pierce court late last month, Cannon did hold hearings on the special counsel appointment and funding questions and acknowledged there were multiple precedents established over the years that supported their appointments. And one of Smith’s prosecutors indicated the Justice Department would find the money from its own budget to fund the prosecution.

The defense countered that the judicial rulings creating the precedents were mistaken.

For decades, courts have rejected efforts to undermine the legality of independent prosecutors. Most recently, judges have rejected efforts to invalidate the work of special counsels like Robert S. Mueller III, who examined connections between Russia and Trump’s 2016 presidential. campaign, and David C. Weiss, who brought criminal cases against Hunter Biden, the president’s son.

No other Supreme Court justice on Monday commented on the special counsel questions, and the majority’s opinion on immunity made no mention of them.

Cannon has yet to rule on the defense motion to dismiss that is pegged to the special counsel question.

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