Trump moves to throw out feds’ classified documents case, claiming presidential immunity

Lawyers for former President Donald Trump have added a little spice to his plodding classified documents case in South Florida by moving to throw out a 42-count indictment based on claims of presidential immunity and other legal issues.

His lawyers filed motions late Thursday seeking to dismiss the indictment in an historic case that has mostly centered on secret discussions with U.S. District Judge Aileen Cannon over national security materials before the May 20 trial in the Fort Pierce federal court.

Trump, who was initially arraigned in Miami federal court in June, is accused of withholding highly sensitive military, defense and security documents at his Mar-a-Lago residence in Palm Beach from the U.S. government and conspiring with two assistants to obstruct official efforts to retrieve them.

His lawyer’s motions are considered standard operating procedure in all criminal cases, where such defense strategies are almost always rejected. The issue over Trump’s immunity claim has been addressed in his Jan. 6, 2021 election interference case by an appeals court in Washington, D.C. In early February, a three-judge panel rejected his claim that he was immune from prosecution on charges of plotting to subvert the results of his 2020 presidential election loss to Joe Biden — a decision that is expected to be reviewed by the U.S. Supreme Court.

In the classified documents case, Trump’s lawyers argue that he is “immune from prosecution ... because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act and to cause the records to be moved from the White House to Mar-a-Lago.

“As alleged in the superseding indictment, President Trump made this decision while he was still in office,” their motion states. “The alleged decision was an official act, and as such is subject to presidential immunity.”

Trump’s lawyers have urged Cannon to hold a hearing on this matter and other dismissal motions, including the “unlawful appointment” of a special counsel who is prosecuting him. Attorney General Merrick Garland appointed Smith, a career prosecutor, as the special counsel in November 2022.

Trump’s lawyers argued that Garland appointed Smith unlawfully “without Senate confirmation.” In a court filing, they said Smith was appointed as “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.”

Attorneys on Smith’s team are expected to urge Cannon to reject Trump’s dismissal motions, saying the former president had no legal right to retain the classified records at his Palm Beach estate as he refused to turn them over to federal authorities for storage at the National Archives.

Cannon was nominated by Trump and joined the federal bench in South Florida at the end of his term in 2020. She drew criticism after she made a controversial call in 2022 to appoint an independent expert, at Trump’s behest, to examine classified government materials seized by FBI agents from his Palm Beach residence before the former president was indicted the following year. A federal three-judge appellate panel, all Republican-appointees like Cannon, reversed her decision to name a “special master” because she had no authority to do so and effectively killed Trump’s civil case aiming to thwart the impending indictment.

The criminal case over Trump’s retention of classified documents was brought against the former president in June, and was expanded the following month in an indictment naming two other defendants: Walt Nauta a former White aide who still works with the ex-president, and Carlos De Oliveira, a property manager of his Mar-a-Lago estate.

The indictment, returned by a Miami federal grand jury, alleges Trump brought a few underlings at his Palm Beach estate into a close circle that prosecutors say assisted him in trying to hide boxes of classified documents from authorities and to delete video security footage of Mar-a-Lago’s storage area and nearby hallway linked to the residence.

According to the indictment, Trump spoke with De Oliveira for 24 minutes after the Justice Department informed his legal team on June 22, 2022 of a draft grand jury subpoena for the surveillance footage at Mar-a-Lago. Two days later, the subpoena was officially delivered to Trump’s residence. And on June 25, after changing his travel plans, Nauta flew to the Palm Beach estate. Then, on June 27, Nauta collaborated with De Oliveira to find and destroy the surveillance video, the indictment states.

The indictment does not say whether Trump, Nauta or De Oliveira were successful in deleting any of the video footage. But previous filings in the unprecedented case show that a June 2022 grand jury subpoena uncovered video images that prosecutors with the special counsel’s office say revealed damning evidence.

The information provided the basis for FBI agents to obtain a court-approved warrant to search Mar-a-Lago on Aug. 8, 2022, when they found and seized more than 100 classified documents in the former president’s office and the club’s storage area.