Lawyers for former President Donald J. Trump launched a barrage of attacks Thursday night against federal charges accusing him of illegally withholding classified documents after leaving office, filing more than 70 pages of court documents to dismiss the case.
In four separate motions to dismiss the case, Mr. Trump’s lawyers mounted a barrage of legal arguments in an attempt to overturn a criminal case that many legal experts consider the most ironclad of the four against him. They have attacked the law he is accused of breaking, questioned the legitimacy of the special counsel prosecuting him and argued that he is protected from prosecution by presidential immunity.
Some of the arguments tested the limits of credulity and fell in the face of previous court decisions. Many appeared designed to delay the case’s move to trial, a strategy Mr. Trump has followed in all the criminal proceedings he has faced.
In one of their most brazen motions, Mr. Trump’s lawyers argued that he was immune from prosecution over the classified documents charges, even though a federal appeals court flatly rejected that argument this month when he tried to use it in a separate case , in which he is accused of plotting to subvert the 2020 election.
Mr. Trump’s claims of immunity have always been based on the theory that he could not be impeached for any actions he took as president. And his lawyers tried to argue in their petition that he should not be prosecuted for moving dozens of classified files from the White House to Mar-a-Lago, his private club and residence in Florida, because his initial decision was made while he was in power.
But that reasoning seemed largely intended to sidestep the text of the law — the Espionage Act — that prosecutors accused him of violating. Mr Trump has been specifically accused of willfully withholding classified documents, and prosecutors say the deliberate retention of the files continued for many months after he left office, ending as recently as August 2022 when FBI agents, executing a search warrant, they occupied them at Mar-a-Lago.
In a separate move, Mr. Trump’s lawyers sought to poke holes in various sections of the Espionage Act, saying some phrases in the law were “unconstitutionally vague as they apply to President Trump.”
The law, for example, makes the “unauthorized possession” of documents “related to national defense” a crime.
Mr Trump’s lawyers appeared to argue that presidents have always been authorized to take possession of national security files. They also claimed that the definition of “national defense” records was so broad and ambiguous that no one could know what the phrase meant.
In their third move, Mr. Trump’s lawyers went after Jack Smith, the special prosecutor overseeing the two federal cases against Mr. Trump, alleging that he was illegally appointed to his position.
The lawyers made an untested argument: that under the Constitution, Attorney General Merrick B. Garland should have received Senate confirmation of Mr. Smith’s appointment in November 2022. Without it, the lawyers wrote: “ Jack Smith does not have the authority to prosecute this action. “
Finally, Mr. Trump’s lawyers filed a motion reiterating an argument they – and their client – have made repeatedly since long before the indictment in the case was returned in June: that under the Presidential Records Act, Mr. Trump had the “unreviewable discretion “to mark the records at issue as personal,” meaning the documents were not unauthorized at all, but belonged to him.”
Legal experts have disputed this expansive interpretation of the Presidential Records Act, saying the law was enacted after the Watergate scandal for precisely the opposite reason. It was intended to ensure that the US government, not an individual president, would have control over most presidential records.
Mr. Trump’s lawyers promised in a court filing earlier this week to file as many as 10 motions to dismiss. But at the last minute, Judge Aileen M. Cannon, who is overseeing the case, granted them a brief delay as they asked permission to file some of the documents partially under seal.
The lawyers sent the partially sealed motions to Judge Cannon privately Thursday night and could file redacted public versions by early next month. Those motions, Mr. Trump’s lawyers said in yet another court filing, would include one that would seek to suppress evidence seized during the FBI’s Mar-a-Lago investigation and another that would indict members of of Mr. Smith’s team for prosecutorial misconduct.
The lawyers also plan to file a motion attacking a judge’s ruling last year that allows prosecutors to bypass the usual protections of the attorney-client privilege and compel one of Mr. Trump’s lawyers to provide them with documents and testify juror.
In addition, lawyers plan to file redacted documents arguing that prosecutors engaged in a “selective and vindictive” prosecution of Mr. Trump. That motion is likely to accuse Mr. Smith of wrongfully bringing classified documents charges against Mr. Trump, even though a separate special counsel, Robert K. Hurr, declined this month to charge President Biden with withholding. material after he left the vice presidency.
Mr. Trump’s lawyers have also asked Judge Cannon to hold hearings on five of the motions they have filed — a request that, if granted, could significantly slow the case. Next Friday, Judge Cannon will hold a separate hearing in Federal District Court in Fort Pierce, Florida, to review the trial date for the case, which is currently set for May 20 but will almost certainly be postponed .
