Former US President Donald Trump asked the federal judge overseeing his criminal retention of classified documents case on Thursday to dismiss the case based on a claim of presidential immunity. Trump currently faces 40 criminal charges in the case. His motion to dismiss only deals with the first 32 counts of the indictment against him, which deal with the willful retention of national defense information.
In his motion to dismiss counts 1-32 of the criminal indictment, Trump’s counsel argued that he is immune from prosecution “as these charges stem directly from official acts by President Trump while in office.” Trump’s reasoning stems from his continued assertion that he was justified in retaining the classified documents because, prior to leaving office, he declassified the documents via the Presidential Records Act (PRA). Trump argued that his actions under the act constituted “official acts,” entitling him to presidential immunity.
Counsel continued:
Where, as here, the President exercised his inherent Executive authority to organize and dispose of his own records, and acted pursuant to an explicit statutory grant of authority under the PRA, the official nature of his conduct is at its zenith.
Furthermore, Trump said that even if federal prosecutors are able to establish that his reliance upon the PRA was “illegal or otherwise improper,” they are unable to claim that the actions fell beyond his official acts as president. “After all,” Trump argued, “every claim of immunity is raised against charges of allegedly improper motive or purpose.”
Similar to Trump’s claim of “absolute” presidential immunity in his criminal case revolving around his alleged interference in the 2020 US presidential election, there is no precedent for a claim of presidential immunity in criminal cases. Instead, Trump relies upon several cases dealing with presidential immunity in civil cases.
Trump also asserted that courts “lack authority to sit in judgment over a president’s official acts” due to the Executive Vesting Clause of Article II Section 1 of the US Constitution. This is the very same separation of powers argument Trump relied upon in his election interference case.
On February 6, the US Court of Appeals for the DC Circuit struck down those very same arguments from Trump in his election interference case. The court found, “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. … [A]ny executive immunity that may have protected him while he served as President no longer protects him.” Since then, Trump has sought review before the US Supreme Court on the issue.
In his motion to dismiss, Trump also referred the court to the Impeachment Judgment Clause of the US Constitution, arguing that “a president cannot be criminally prosecuted unless he is first impeached and convicted by the U.S. Senate.” Unlike the election interference case against him, Congress never initiated any impeachment proceedings related to Trump’s retention of classified documents—namely because the documents were not discovered to be missing until after Trump had left the presidency.
Recognizing the similarity in his arguments, Trump urged US District Judge Aileen Cannon to “not follow the D.C. Circuit’s non-binding, poorly reasoned decision.” Trump also requested that the court hold a hearing on his claim of presidential immunity “to resolve any factual disputes relating to [his] official acts.”
The 40 criminal charges in this case against Trump stem from claims that the former president wrongfully took classified government documents with him when he departed the White House on January 20, 2021. These documents included classified descriptions and analyses of US and foreign allies’ defense and weapons capabilities, nuclear information, potential US vulnerabilities and retaliation plans. The indictment clearly stated that Trump was not authorized to possess or retain these classified documents after his tenure as US president came to an end on January 20, 2021. And yet, the documents were discovered by the FBI during an August 2022 search of his Mar-a-Lago, Florida private residence.
Two other individuals—Trump aide Waltine Nauta and Trump property manager Carlos De Oliveira—also face criminal charges for their role in the case. All three have entered not-guilty pleas.
