Critics say Trump lawyers using arguments in classified docs case that have already lost

By Jen Krausz on
 March 26, 2024

Former President Donald Trump's lawyers argued on Sunday that he had immunity when he retained classified documents on January 20, 2021 and that Special Prosecutor Jack Smith was unlawfully appointed, both arguments that critics pointed out were losers during the Mueller investigation.

While claiming immunity, defense attorneys Todd Blanche and Christopher Kise asked Judge Aileen Cannon to withhold her own immunity ruling until the Supreme Court rules on the question of Trump's immunity in May or June.

"The timeframe alleged for each of Counts 1 – 32 begins on January 20, 2021," the defense brief read. "President Trump was the Commander in Chief until noon that day. As alleged by the Office in the Superseding Indictment, President Trump allegedly made the decision to retain the documents in question, by “caus[ing]” them to be removed from the White House, while he was still President."

Article II of the U.S. Constitution has generally been understood to grant presidents immunity from criminal prosecution and from lawsuits, a point that Trump has raised repeatedly in some of his civil and criminal cases.

The pros and cons

Although he is being prosecuted now, many of the charges stem from dates when he was President of the United States.

The Supreme Court will weigh in on whether his reasoning is consistent with the Constitution.

On the one hand, the president may need to act in ways as president that are not seen as lawful, and the Founding Fathers recognized this.

On the other hand, it is probably not wise in this day and age to suggest that no matter what a president does, he can't be prosecuted.

It seems reasonable to ask Cannon to wait until the Supreme Court rules on immunity, even though it has to frustrate Smith, who seems almost desperate to convict Trump of something before the election, believing it will hurt his chances to be elected.

Weaker argument

The argument that Smith as special prosecutor is unlawful is a weaker argument than immunity, given that it was tried in the Robert Mueller investigation and failed there.

Trump's defense team argued that Smith's prosecution is invalid because he was not confirmed by the Senate.

“If U.S. Attorneys are principal officers—and they are—then so too must a Special Counsel’s appointment require Senate confirmation,” the lawyers argued.

Relevant law seems to state that because he was appointed by Attorney General Merrick Garland, who was himself confirmed by the Senate, that is all that's needed, however.

The argument seems like a stretch, but in today's court system, one never knows what's going to work.

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