Donald Trump (AP Photo/Mike Stewart), File), U.S. District Judge Aileen Cannon, special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)
The defense for former President Donald Trump filed on Sunday in support of two more motions to dismiss his Espionage Act prosecution, claiming that “presidential immunity” and the special counsel’s “unlawful appointment” should make the Mar-a-Lago case go away.
Asking U.S. District Judge Aileen Cannon to hold an immunity motion ruling in abeyance until the U.S. Supreme Court rules in Trump v. United States come May or June, defense attorneys Todd Blanche and Christopher Kise called the Espionage Act case “novel and flawed.”
Accusing special counsel Jack Smith of carrying out President Joe Biden’s “election-interference mission against his leading opponent,” the lawyers insisted that their motion to dismiss on immunity grounds “is most certainly not frivolous or dilatory.”
In support of that position, they pointed to the indictment and said Trump’s decision to retain classified documents occurred while he was president, thereby making those official acts not fit for prosecution:
The timeframe alleged for each of Counts 1 – 32 begins on January 20, 2021. 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. According to the Superseding Indictment, the decision allegedly occurred as President Trump “was preparing to leave the White House,” when President Trump “and his White House staff . . . packed items” that the Office believes “contain[ed] hundreds of classified documents.” In two court filings in this case, the Office has conceded that these alleged decisions occurred during President Trump’s first term.
The lawyers asked the judge not to hand Smith a win by “designat[ing] the motion as frivolous in an effort to foreclose potential appellate rights” should the Supreme Court rule in favor of prosecutors.
In a second reply in support, the defense argued that the special counsel was unlawfully appointed and is unlawfully funded.
The defense asserted that Jack Smith cannot prosecute Trump because he was not a U.S. Attorney confirmed by the U.S. Senate, illegally rendering him “unchecked power” in a “principal officer” role.
“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.
These same arguments were raised during special counsel Robert Mueller’s Russia investigation and lost time and again, as courts ruled the special counsel is an “inferior officer” who doesn’t need to be confirmed by the Senate and still answers to the U.S. attorney general. When Merrick Garland appointed Smith in November 2022, he wrote that he did so “[b]y virtue of the authority vested in the Attorney General, including 28 U.S.C. §§ 509, 510, 515, and 533, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation.”
Put simply, Smith was appointed by Garland, who was confirmed by the Senate and maintains his “plenary supervision” of the special counsel.
Trump’s attorneys asserted, however, that Smith enjoys power which “far exceeds” what is “exercisable by a non-superior officer, authority that Congress has not cloaked him with.”
The defense separately argued that Smith’s funding is unlawful, likening it to “offering the Special Counsel a blank check” in violation of the Appropriations Clause.
Claiming this has “harmed President Trump’s substantial rights,” the defense said the special counsel is conducting an “expansive politically motivated witch hunt” free of any “constraints” or any “accountability.”
“The Special Counsel’s Office is pursuing two different cases in two jurisdictions in order to maximize interference in the ongoing presidential election. This tactic is the luxury of a prosecutor facing no resource constraints,” the reply in support said. “And it is far from a forgone conclusion, as the Office seems to treat it, that DOJ ‘could readily have funded the Special Counsel from other appropriations that were available.””
Read the documents here and here.
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