Donald Trump is hoping that the Supreme Court decision in his election interference case can prove to deliver him a third procedural win, this time in the case in which he is accused of hoarding government secrets after he left office.
The decision offers the former president a number of fresh opportunities to challenge special counsel Jack Smith’s indictment, legal experts say.
On Friday, he asked Judge Aileen Cannon to further delay the case — which still doesn’t have a trial date due to a slew of slow-moving motions still to be decided — to allow the impact of the decision to be weighed. Trump also asked the judge to look to Justice Clarence Thomas’ dissent to bolster his argument that Smith’s existence as a prosecutor shouldn’t be allowed to continue.
But those are not the only options that Trump may seek to scuttle the case after the latest decision from the court. The Supreme Court ruled in a 6-3 decision that presidents are shielded from prosecution for official acts and garner “at least a presumptive immunity from criminal prosecution” for acts “within the outer perimeter of his official responsibility.”
While Trump is not entitled to immunity for unofficial acts, the burden is on the government when there is a close call.
Much of the indictment focuses on Trump’s time after leaving office, which legal experts say makes it harder to argue they are “official acts.” But Trump is not without options.
Trump has tried to argue that he denoted the documents as “personal” when he was still in office, meaning they can’t be treated like sensitive government secrets. Federal prosecutors have rebuked Trump’s argument that the Presidential Records Act allowed him to designate as personal the documents he took from the White House.
Legal experts said they expect the defense to revisit arguments about how and when Trump could declassify classified documents as he left the White House.
“The outcome will depend on whether Judge Cannon characterizes Trump’s decision at the end of his Presidency to transport the documents to Mar-a-Lago as an official act of designating the documents as personal, and whether she views that act as an essential premise on which the criminal charges depend,” said Joel Johnson, an associate professor at Pepperdine Caruso School of Law. He said the court’s decision could prove beneficial to Trump.
“I expect that his legal team will double down on its argument that he designated the documents as personal before leaving office and that, in doing so, he was performing an official act—which is afforded at least a presumption of immunity from criminal prosecution under this morning’s Supreme Court decision,” Johnson said in an email. “Because the criminal charges flow from that official act, Trump’s team will likely argue, they should be dismissed on the basis of presidential immunity.”
Other experts said that while they were skeptical of this argument, Cannon, who has spent long days listening to lawyers argue defense motions to dismiss the charges on a broad range of grounds, may be inclined to hear it.
“On its face, the case is about the failure to do an official act. So you hope that the immunity decision wouldn’t have any impact,” said Jeffrey Cohen, an associate professor of Law at Boston College. But Cohen, a former Assistant United States Attorney in the district of Massachusetts, said his “fear is that the ambiguity in which the court wrote the immunity decision will give the defense in the classified document case confused basis to challenge the case.”
He said that the defense could point to something that happened while Trump was president “to try to hook all the unofficial acts onto” and sow confusion about whether the failure to return the documents was official or not.
“I think the court thought itself to be very clear about unofficial and official acts but what it does is spend a lot of pages sort of muddying the water up between what an official act isn’t an official act,” Cohen said.
He said he feared Cannon “will confuse these issues.”
“And there should be no confusion about it; it is all unofficial acts,” Cohen argued. “In failure to respond to subpoenas, hiding documents, he did it all as a private citizen.”
“He was out of office, so he shouldn’t be able to claim the presidential immunity if that’s what we’re going to start calling it,” said Richard Gregorie, a former Chief Assistant for the U.S. Attorney’s Office in Miami, Florida. “Now, whether the judge will insist that there be some sort of hearing or will prevent some evidence from coming in, that’s a possibility.”
Asked for comment, Trump’s campaign responded with a statement from the former president, who celebrated the ruling in a post to his social media platform, Truth Social.
“Today’s Historic Decision by the Supreme Court should end all of Crooked Joe Biden’s Witch Hunts against me, including the New York Hoaxes — The Manhattan SCAM cooked up by Soros backed D.A., Alvin Bragg, Racist New York Attorney General Tish James’ shameless ATTACK on the amazing business that I have built, and the FAKE Bergdorf’s ‘case,’” Trump wrote. “PROUD TO BE AN AMERICAN!”
In a later statement posted to his social media platform, Trump said the decision had granted him “total exoneration.”
There are other avenues stemming from the ruling that Trump’s defense could press.
In a concurring opinion, Thomas suggested the special counsel’s appointment was improper under the Constitution.
While Thomas’ opinion is not binding and says little about where the other justices stand, it may still prove significant, said Johnson. “It not only expresses his substantial doubts about the constitutionality of special counsel, but also lays out a nine-page argument that Judge Cannon could use to reach the same conclusion.”
Cannon last week heard arguments on this question.
Still, said Johnson, relying on the opinion “would not insulate her from reversal on appeal,” a feature others pointed to.
“If Judge Cannon wishes to adopt his reasoning, I expect she will be reversed by the 11th Circuit Court of Appeals,” said Dave Aronberg, the State Attorney for Palm Beach County, Florida.
One overarching point remained, however: that the immunity ruling further reduces the prospect that the trial will occur before November, if it happens at all. There is no trial date in the case, and no indication that one is forthcoming.
“I have no doubt that there will be another set of motions filed and that Judge Cannon will need ample time to work through those motions,” said Justin Levitt, a professor of law at Loyola Marymount University. Any delay almost guarantees there will not be a trial before Election Day.
“The primary impact of today’s decision on the classified documents cases is just to reconfirm that it’s extremely unlikely to be heard before November,” Levitt added.
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