Trump asks Florida judge to throw out his indictment - six different ways

Michael Vadon

On Thursday, a flurry of motions to dismiss the former president’s indictment in the national defense information case hit the docket in the Southern District of Florida, ranging from the frivolous to the laughable.

Motion to dismiss based on presidential immunity

As he’s attempted to do in the D.C. election interference case, Trump argues that he’s immune from prosecution in this case because he should be granted absolute immunity. Of course, the conduct described in the indictment occurred when he was no longer in office, so his lawyers have crafted a convoluted argument whereby he’d designated the documents at issue as “personal” while still commander-in-chief and was therefore able to walk out with them “under the Presidential Records Act” because classifying them as his own property “was an official act, and as such is subject to presidential immunity.” 

What’s notable here is the way his attorneys have described this, as his “alleged decision to designate records as personal”. They’re not saying that he absolutely did class them as personal, because they can’t, which underscores a fundamental flaw in his argument. No one wants to get caught lying on a court document, so they’ve hedged their bets by using “alleged”.

Having an immunity question before another court in a different jurisdiction may complicate things a little. The Supreme Court is currently considering a stay application related to the D.C. Appeals Court decision denying him immunity in the federal election interference case. It had been hoped that SCOTUS would simply deny the stay and any future petition to hear the immunity issue themselves, leaving the decision by a three-judge panel to stand. Seeing that he’s brought up the matter in another jurisdiction may lead the Justices to feel that they need to step in and issue a ruling that’s binding on both courts, potentially delaying the pending federal cases even further.

Motion to dismiss based on the Presidential Records Act (PRA)

As noted in his motion based on presidential immunity, Trump is claiming that he was entitled to designate the trove of national defense information as personal. In his motion to dismiss based on the PRA, his lawyers claim that because of this, “possession of these records was not ‘unauthorized’ as alleged” in the indictment.

The problem with this argument is that personal records have a definition under the PRA, as those that are “of a purely private or non-public character”. In no universe are the types of documents described in the indictment “purely personal”. Those records belong to the government and fell under the management of the National Archives and Records Administration the moment Trump was no longer president. From noon on inauguration day, he had no legal right to them.

Motion to dismiss based on unconstitutional vagueness 

A third motion filed by the former president claims that the language in the indictment is too vague, because terms like “unauthorized possession” and “relating to the national defense” are complicated to understand “as applied to…a former president operating within the framework of the PRA”, who had “ultimate original classification authority”, and “is entitled to immunity for his official acts.”

This is essentially an argument claiming “my client is above the law”, which should be dismissed as frivolous.

Motion to dismiss based on unlawful appointment and funding of Special Counsel Jack Smith

Perhaps the most frivolous argument however, is found within Trump’s motion to dismiss based on the “unlawful appointment” of Jack Smith. The motion is essentially a re-run of discredited arguments made by former Attorney General Edwin Meese in amicus briefs submitted to the Supreme Court in any case relating to the use of Special Counsels. The crux of the motion is that Jack Smith is acting with the power of a superior officer, accountable to no one, which isn’t permitted unless the Senate has confirmed the appointment. However, as Neal Katyal pointed out in a 2018 article when the same argument was applied in the Mueller probe, Special Counsels are required to “work under the supervision of the Attorney General”, so the entire motion is specious. 

Two further motions to dismiss the indictment have been filed, but not on the public docket: one “based on selective and vindictive prosecution” and another “based on prosecutorial misconduct, resulting in due process violations, impermissible pre-indictment delay, and grand jury abuses.” Trump’s lawyers have asked for hearings on each of them in an attempt to delay going to trial for as long as possible.

There’s a scheduling conference for the case this week, on Friday. Given the documents now before the court and a judge who has already dragged her feet with respect to the process under the Classified Information Procedures Act, it’s highly unlikely that this case will be ready to go to trial for months. We’ll soon find out whether Judge Cannon will set a new schedule or continue with the pretense that a May trial is possible, when it’s clear to everyone that that’s not happening.