Thursday, Feb. 22, marked the general deadline for filing most pre-trial motions in former President Donald Trump's classified documents case in South Florida which Special Counsel Jack Smith is criminally prosecuting.
Trump's defense attorney filed for separate but related motions to dismiss some or all of the charges, and presiding District Judge Aileen Cannon ordered Smith to respond to those motions within two weeks, or no later than March 7, according to the court's docket.
The classified documents case is tentatively scheduled to go to trial near the end of May. Yet, given the complexity and time-consuming procedures for handling classified materials in a courtroom setting -- to say nothing of how the judge might rule on the dismissal motions -- it seems more likely than not that the trial will be delayed until some unspecified future date ... if it ever takes place at all.
Breitbart reported that former President Trump's four dismissal motions were based on his claims of presidential immunity, that one of the key statutes pressed against him was "unconstitutionally vague," that Special Counsel Smith's initial appointment and continued funding are unlawful, and that he had the full and sole authority under the Presidential Records Act to retain any documents from his administration that he saw fit.
Some of those claims have been raised by Trump and others on his behalf in his other federal election-related criminal prosecution by Smith, such as the immunity claim and the unlawful appointment claim, though they were rejected by the D.C. courts and are now awaiting adjudication at the Supreme Court.
In fact, in the 22-page motion to dismiss for presidential immunity, Trump's attorney wrote, "The D.C. Circuit recently erred in finding that President Trump was not entitled to presidential immunity in connection with the set of criminal charges pending in the District of Columbia."
"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," he added. "This Court should not follow the D.C. Circuit’s non-binding, poorly reasoned decision."
As for his main immunity argument, the motion stated, "Specifically, President Trump is immune from prosecution on Counts 1 through 32 because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act (“PRA”) 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. The alleged decision was an official act, and as such is subject to presidential immunity."
"The Court should hold a hearing to resolve any factual disputes relating to the official nature of President Trump’s PRA designation and the removal of his personal records from the White House," Trump's attorney added. "Following any necessary hearing, the Court should dismiss Counts 1 through 32."
Moving on, former President Trump's attorney filed a 20-page motion to dismiss based on the "unconstitutional vagueness" of a particular criminal statute that underlines a majority of the charges, namely 18 U.S.C. § 793(e), which deals with the "unauthorized possession" of defense-related information paired with the subject "willfully" disclosing that information to others or retaining and refusing to turn it over to an authority "entitled to receive it."
The motion detailed several cases over the decades that called into question the meaning of various phrases within that statute and argued that, regardless of what those meanings might ultimately be, it still didn't apply to Trump in his role as the president.
Then there was the 16-page motion to dismiss based on the claim that Special Counsel Smith's initial appointment and the continued funding of his office are unlawful and violate both the Appointments Clause and Appropriations Clause of the U.S. Constitution -- an argument first raised by former Attorney General Ed Meese and constitutional law professors Steven Calabresi and Gary Lawson.
The gist of that argument is that Congress never authorized a "special counsel" position and that anyone Attorney General Merrick Garland appointed to that unauthorized role must first be confirmed by the Senate for some other authorized office, such as a U.S. attorney. It further argues that the special counsel's office draws a sort of blank-check "off the books" funding from a holdover account related to the now-defunct "independent counsel" position, and not through the normal congressional appropriations process.
Finally, Trump's attorney filed a 17-page motion to dismiss the entire indictment based on the claim that Trump, by way of the President Records Act, had the sole and "unreviewable" authority to determine what records were "presidential," and thus must be turned over to the National Archives, and what were "personal" and could be retained in his possession.
