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Donald Trump’s attorneys said late Thursday that the former president should never have been charged in Florida with illegally retaining classified materials because he designated them as personal documents before leaving office — and thus should be shielded from prosecution by presidential immunity.
It is the second time Trump has tried to avoid a federal criminal trial with the sweeping argument that he cannot be prosecuted for actions that occurred while he was president. A judge and an appeals court panel have rejected that claim in his Washington, D.C., trial for allegedly obstructing the 2020 election results, but Trump has asked the Supreme Court to intervene.
The Supreme Court’s decision could settle the question of presidential immunity in both the D.C. and Florida cases.
The immunity court filing Thursday night was one of least a half dozen requests by Trump’s attorneys in Florida to toss out the 40-count indictment, which accuses Trump of mishandling classified papers after he left office and obstructing government efforts to retrieve them. Trump has pleaded not guilty.
Other motions cited alleged prosecutorial misconduct and selective and vindictive prosecution. Trump has unsuccessfully made some of the same dismissal arguments in the federal D.C. case.
The immunity motion referred to the 32 counts he faces of illegally retaining national defense information, with each count corresponding to a specific classified document that Trump is accused of wrongly keeping.
The eight other charges are related to actions that allegedly occurred after his presidency was over. They include allegations that he intentionally misled investigators who tried to retrieve the classified materials from Mar-a-Lago, his Florida home and private club, and obstructed the investigation.
“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 immunity filing reads. “The alleged decision was an official act, and as such is subject to presidential immunity.”
A separate, long-shot motion argued that special counsel Jack Smith — the prosecutor tapped by Attorney General Merrick Garland to lead the federal investigation of Trump — was not properly appointed since he was not confirmed by the U.S. Senate. Another argued that one count alleging that Trump retained a document related to nuclear secrets should be dropped because he remained on a classified clearance list months after leaving office. The Justice Department has refuted the claim that Trump retained this clearance.
The Presidential Records Act (PRA) is at the crux of at least two of Trump’s arguments to dismiss the case. Passed in 1978 after President Richard M. Nixon sought to destroy White House tapes during the Watergate scandal, the act specified that presidential records belong to the public and are to be turned over to the National Archives and Records Administration the end of a presidency.
Trump’s lawyers say the former president had the right to designate presidential documents as personal ones under the PRA. The Justice Department, however, has slammed that interpretation, saying the idea that a president could simply designate presidential documents as personal ones would go against the very purpose of the federal act.
Legal experts have said that multiple federal laws protect national security information — and whether Trump considers the materials classified or personal property is irrelevant if they contain some of the nation’s secrets.
In their filing Thursday, Trump’s attorneys said Trump had the ultimate authority to designate a document as personal — not the nation’s archivists. Because of this, they argued, officials should never have launched an investigation into Trump’s possession of the materials, and the obstruction charges against him should also be dismissed.
“The PRA conferred unreviewable discretion on President Trump to designate the records at issue as personal,” the filing says. “As such, President Trump’s possession of those records was not ‘unauthorized’ as alleged in Counts 1 through 32.”
Federal prosecutors will have an opportunity to reply to the motions before U.S. District Judge Aileen M. Cannon rules on them.
Cannon has scheduled a hearing for next Friday in the case; she could decide then whether to delay a planned May 20 trial start date. The judge has previously indicated that she is sympathetic to requests from Trump’s lawyers for more time to build their defense.
Thursday’s deadline to submit the pretrial motions was complicated by a fight between federal prosecutors and defense attorneys over whether names of witnesses involved in the case, and the substance of what they have told investigators, should be made public. Trump’s lawyers indicated in a filing that they sent some of their filings directly to the judge — instead of posting them on the public docket — so that any potential redactions could be debated.
The motion arguing that the case should be dismissed because of selective prosecution, for example, was not filed publicly Thursday night.
Cannon initially sided with the Trump’s attorneys in saying the names of potential witnesses should be unsealed. Smith and his team of federal prosecutors asked her to reconsider earlier this month, saying that making the names public and revealing what they said would expose the potential witnesses to “significant and immediate risks of threats, intimidation, and harassment.”
The Florida indictment is one of four criminal prosecutions Trump is facing. In addition to his federal D.C. trial, which is on hold while the Supreme Court considers the immunity issue, he is scheduled for trial in New York starting March 25 for allegedly falsifying business records in connection with a hush money payment to an adult-film star during the 2016 election campaign.
Trump also faces a sweeping racketeering indictment in Georgia for his alleged efforts to block the 2020 election results in that state.