Donald Trump is hoping the Supreme Court ruling in his election interference case could give him a third procedural victory, this time in the case in which he is accused of hoarding government secrets after leaving office.
The decision offers the former president a series of new opportunities to challenge Special Counsel Jack Smith’s indictment, legal experts say.
On Friday, he asked Judge Aileen Cannon to further delay the case – which does not yet have a trial date due to a series of slow-moving motions yet to be decided – to allow the impact of the ruling to be assessed. Trump also asked the judge to consider Justice Clarence Thomas’ dissent to bolster his argument that Smith’s existence as prosecutor should not continue.
But these are not the only options that Trump may try to drop the case after the court’s latest ruling. The Supreme Court ruled 6-3 decision that presidents are protected from prosecution for official acts and obtain “at least presumptive immunity from criminal prosecution” for acts “within the outer perimeter of their official responsibility.”
While Trump is not entitled to immunity for unofficial acts, the burden falls on the government when there is a difficult situation.
Much of the accusation focuses on the time Trump spent after leaving office, which legal experts say makes it more difficult to argue that these were “official acts.” But Trump is not without options.
Trump has tried to argue that he designated the documents as “personal” while he was still in office, meaning they cannot be treated as sensitive government secrets. Federal prosecutors rebuked Trump’s argument that the Presidential Records Act allowed him to designate documents he removed from the White House as personal.
Legal experts said they expect the defense to revisit arguments about how and when Trump could declassify classified documents upon leaving the White House.
“The outcome will depend on whether Judge Cannon characterizes Trump’s decision, late in his presidency, to transport the documents to Mar-a-Lago as an official act of designating the documents as personal, and whether she views that act as a premise essential upon which criminal charges depend,” said Joel Johnson, associate professor at Pepperdine Caruso School of Law. He said the court’s decision could be beneficial to Trump.
“I hope his legal team will double down on the argument that he designated the documents as personal before leaving office and that in doing so he was performing an official act – giving him at least a presumption of immunity from prosecution. criminal offense under this morning’s Supreme Court ruling,” Johnson said in an email. “Because the criminal charges stem from this official act, the Trump team will likely argue, they should be dismissed on the basis of presidential immunity.”
Other experts said that while they were skeptical of this argument, Cannon, who has spent long days listening to lawyers present defense motions to dismiss the charges for a wide range of reasons, may be inclined to listen to it.
“At first glance, the case is about the omission of an official act. So you hope the immunity decision doesn’t have any impact,” he said. Jeffrey Cohen, associate professor of law at Boston College. But Cohen, a former assistant U.S. attorney for the District of Massachusetts, said his “fear is that the ambiguity in which the court wrote the immunity ruling will give the defense in the confidential documents case a confusing basis for contesting the case.”
He said the defense could point to something that happened while Trump was president “to try to tie together all the unofficial acts” and sow confusion about whether the failure to return the documents was official or not.
“I think the court found it to be very clear about official and unofficial acts, but what it does is spend many pages confusing the issue of what an official act is not an official act,” Cohen said.
He said he fears Cannon “confuses these issues.”
“And there should be no confusion about it; they are all unofficial acts,” Cohen argued. “By not responding to subpoenas, hiding documents, he did everything like a common citizen.”
“He was out of office, so he shouldn’t be able to claim presidential immunity, if that’s what we’re going to start calling it,” said Richard Gregorie, former chief assistant U.S. Attorney’s Office in Miami, Florida. “Now, whether the judge will insist that there be some kind of hearing or prevent some evidence from coming in, that is a possibility.”
Asked to comment, Trump’s campaign responded with a statement from the former president, who celebrated the decision in a post on his social media platform, Truth Social.
“Today’s historic Supreme Court ruling should end all of corrupt Joe Biden’s witch hunts against me, including the New York hoaxes – the Soros-invented Manhattan SCAM supported by District Attorney Alvin Bragg, the blatant racist ATTACK from New York Attorney General Tish James on the Amazing Business I Built and the FAKE Bergdorf ‘Case’,” Trump wrote. “PROUD TO BE AMERICAN!”
Later declaration posted on his social media platform, Trump said the ruling granted him “full exemption.”
There are other avenues arising from the decision that Trump’s defense could push for.
In a concurring opinion, Thomas suggested that the special counsel’s appointment was improper under the Constitution.
While Thomas’ opinion is non-binding and says little about the position of the other justices, it could still be significant, Johnson said. “He not only expresses his substantial doubts about the constitutionality of the special counsel, but also presents a nine-page argument that Judge Cannon could use to reach the same conclusion.”
Cannon heard arguments on this issue last week.
Still, Johnson said, relying on the opinion “would not insulate it from reversal on appeal,” a feature noted by others.
“If Judge Cannon wishes to adopt her reasoning, I hope she will be reversed by the 11th Circuit Court of Appeals,” said Dave Aronberg, state attorney for Palm Beach County, Florida.
However, one general point remained: the fact that the immunity decision further reduces the prospect of the trial taking place before November, if at all. There is no trial date in the case and no indication that one will be forthcoming.
“I have no doubt that there will be another set of motions filed and that Judge Cannon will need a lot of time to work on those motions,” said Justin Levitt, a law professor at Loyola Marymount University. Any delay almost guarantees there will be no trial before Election Day.
“The main impact of today’s ruling on the confidential documents cases is simply to reconfirm that they are extremely unlikely to be heard before November,” Levitt added.
This story originally appeared on NBCNews.com read the full story
