Trump demands judge toss classified documents charges: What to know

Former President Trump demanded his classified documents charges be dismissed in seven separate motions filed late Thursday that assert presidential immunity and other defenses.

A handful of the motions filed in advance of Trump’s Thursday deadline are publicly available, while others will remain under seal for days until the parties discuss necessary redactions.

Many of Trump’s defenses — such as his immunity argument — mimic motions he has made in special counsel Jack Smith’s separate prosecution of Trump in Washington, D.C., on charges related to allegedly subverting the 2020 election results.

Some of the other defenses are specific to the classified documents case, where Trump faces 40 felony counts that accuse him of mishandling classified records and attempting to obstruct the government’s retrieval of those records. Trump has pleaded not guilty.

Here’s what to know about the arguments from Trump’s legal team:

Presidential immunity

Trump contends his 32 counts of willfully retaining national defense information, each of which correspond to a document Trump allegedly took to his Mar-a-Lago resort in Florida after his presidency, must be tossed because he has presidential immunity.

The former president argues he designated the records in question as personal under the Presidential Records Act before leaving the White House.

“President Trump’s decision to designate records as personal and cause them to be removed from the White House plainly constitutes an official act within the ‘outer perimeter’ of the president’s official duties,” Trump attorneys Todd Blanche and Chris Kise wrote in court papers.

In his D.C. criminal case, Trump has made a near-identical immunity argument. But he has so far failed to persuade his trial judge there or an appeals court panel. The matter has since landed at the Supreme Court, which has not yet agreed to take up the case but could announce how it will proceed at any time.

Trump’s attorneys in the classified documents case referenced that ongoing battle, insisting the decisions against the former president were wrong.

“The D.C. Circuit’s analysis is not persuasive for many of the reasons discussed below, and President Trump is pursuing further review of that erroneous decision, including en banc review if allowed, and review in the U.S. Supreme Court if necessary. This Court should not follow the D.C. Circuit’s non-binding, poorly reasoned decision,” Trump’s attorneys wrote in their motion.

Unconstitutional vagueness

If his immunity argument is rejected, Trump next argues those same 32 counts should be tossed because the willful retention charge is “unconstitutionally vague” as applied to the former president.

To prove the charge, prosecutors must show at trial the documents in question relate “to the national defense,” Trump had “unauthorized possession,” and he failed to deliver the records to a federal official “entitled to receive” them.

But Trump’s attorneys homed in on those three phrases in their dismissal motion, describing it as “problematic language” that will be confusing to a jury and violate Trump’s due process rights.

“Since at least 1941, courts in cases with less vexing features than this one have acknowledged grave infirmities in the language of [the charge] and endeavored to ‘save’ the statute. That approach is inconsistent with the due process principles and separation-of-powers concerns that animate the vagueness doctrine,” Trump’s lawyers wrote.

They also separately insisted that one of the 32 document retention charges should be dropped for a different reason: Trump maintained a security clearance to view that particular record.

“Whatever [the charge] means—and that much is unconstitutionally unclear—the Authorization Clause does not prohibit possession of a document by the holder of a valid security clearance, and someone who is cleared to the appropriate level cannot willfully violate the statute,” Trump’s attorneys wrote.

Challenge to Smith’s appointment

Trump further contends the entire case must be dropped because Smith, the special counsel tapped by Attorney General Merrick Garland, was unlawfully appointed.

“The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States. As such, Jack Smith lacks the authority to prosecute this action,” Blanche and Kise wrote in their motion.

It’s an argument made for years by Steven Calabresi and Gary Lawson, law professors who hold leadership roles in the conservative Federalist Society. The duo previously argued the probe led by special counsel Robert Mueller into Trump and Russia’s interference in the 2016 election was unconstitutional for the same reason.

The professors submitted a friend-of-the-court brief in Trump’s D.C. criminal case arguing Smith’s appointment is invalid, but the panel of judges did not act on the concern.

Other defenses

Trump’s attorneys indicated they filed three additional dismissal motions that are not yet publicly available due to redaction concerns.

Attorneys on both sides are set to confer privately about any redactions. The judge gave the parties until Feb. 29 to mount any objections, meaning the documents are unlikely to become public at least until then.

But Trump’s lawyers did outline in public court papers the basic thrust of those sealed arguments.

Like some of his other criminal cases, Trump is asserting he is being selectively and vindictively prosecuted for political reasons. He asked the judge to order additional discovery that would provide further “evidence of bias and political animus.”

Trump is also alleging prosecutorial misconduct, taking aim at how the investigation involved the FBI, the National Archives and Records Administration and other agencies. The former president contends it resulted in due process violations, impermissible delay in bringing the charges and abuses of the grand jury process.

Finally, Trump’s lawyers are pushing back on the FBI’s execution of a search warrant at Mar-a-Lago in August 2022 to search for remaining classified materials. The materials recovered in the search have become central to the prosecution.

Calling the search unconstitutional, Blanche and Kise said the warrant contained “misleading omissions” and that law enforcement improperly pierced attorney-client privilege in its investigation.

Smith’s team will eventually respond to Trump’s motions in court filings. But Smith has pushed back on the former president’s immunity claims in another case, and his team has insisted politics isn’t playing a role in its work.