Fort Pierce, Florida – Attorneys for former President Donald Trump are trying to get a federal judge in Florida to dismiss special counsel Jack Smith's classified documents case on Thursday.
Judge Eileen Cannon is set to hear arguments on two motions filed by Trump, one that says the former president is protected from prosecution by federal records-keeping laws and another that raises several open legal questions about one of the allegations.
It was the second hearing in as many weeks in which Trump's team in Smith's office and lawyers faced each other in Cannon's courtroom.
Smith charged Trump with 32 counts of illegally retaining classified government records, allegedly taking documents from the White House during the presidential transition. The former president and two aides have also been charged with conspiring to obstruct investigations. All three have pleaded not guilty and have denied wrongdoing.
In one of several motions to dismiss filed late last month, Trump argued that the case should be thrown out because, as president, he has “unreviewable discretion” to make any document private. His lawyers argue that the Presidential Registration Act is “preventing.”[d] Judicial Review”, his post.
“While President Trump was still President of the United States, for example, many of the documents at issue were packed (presumably by GSA), transported, and delivered to Mar-a-Lago,” the Trump team argued in the filing. Past precedent should have prevented prosecutors from opening a criminal investigation in the first place, which they said would also disqualify the obstruction charges he faces.
That argument is “false,” the special counsel wrote in his own filing, telling Cannon that the sensitive government records Trump is accused of illegally retaining “are unequivocally presidential, not private” and therefore belong to the government.
After he left office, “Trump was not authorized to keep classified records (let alone in unsecured locations at Mar-a-Lago, the superseding indictment says),” prosecutors wrote.
“The PRA does not exempt Trump from criminal law, giving him the right to unilaterally declare highly classified presidential records private or shield him from criminal investigations — allowing him to evade federal investigations with impunity.”
Trump has long claimed he has a right to keep the records because of the federal classification power he wielded while president, but lawyers have accused the federal government — from archivists to investigators — of a year-long effort. Documents are missing.
Trump returned 15 boxes of documents containing classified documents in January 2022. A grand jury later produced some of the records, according to investigators. The FBI executed a court-authorized search warrant at Trump's Mar-a-Lago resort that uncovered hundreds of sensitive records stored in unsecured locations.
“The Office of Special Counsel cannot escape importing the PRA's textual obligations of discretion and authority over President Trump during his first term,” Trump's lawyers responded Wednesday.
A second motion to be considered on Thursday is based on Trump's argument that there are several open legal questions about the so-called Espionage Act, which he is accused of violating. Trump's lawyers argue that the unresolved legal questions amount to unconstitutional ambiguity.
Smith also denied the claim, writing in court documents that “Trump's vagueness argument is without merit. Trump has been charged with the unauthorized and willful possession of national security information. The statute's bar is clear.”
Trump and his co-defendants in the documents have asked for hearings on other motions to dismiss filed last month, including the retaliation claim and presidential immunity claims. Smith has opposed all of those motions and the question of a presidential exemption. The latter issue will be considered by the Supreme Court next month in a separate case linked to Smith's election-related allegations against Trump in 2020 in Washington, D.C.
The criminal investigation has been stayed pending the High Court's verdict.
Prosecutors say Trump's team is trying to delay the trial in Florida, and have argued that criminal proceedings should begin in July. Judge Cannon scheduled the hearing for March 1, but he has yet to rule. The defense committee says a fair trial is not possible before the 2024 presidential election, but has offered an August or September date if the judge deems it necessary to move the trial forward.
Thursday's hearing comes a day after a district judge in Georgia dismissed three charges against Trump as part of Fulton County District Attorney Fannie Willis' 2020 election interference case. The former president still faces other charges in that case. He pleaded guilty to all charges.
Earlier this week, Cannon granted Trump's request for a 10-day extension to file additional documents tied to other motions to dismiss the lawsuit.
