Lawyers for former President Donald Trump on Friday asked the judge overseeing his classified documents case to put that proceeding almost entirely on hold as they sort through whether Trump enjoys immunity from the charges based on a landmark Supreme Court ruling this week.
On Monday, the Supreme Court granted Trump broad immunity against criminal prosecution for his official acts as president. The ruling came after months of legal wrangling arising from his other federal case — the one in Washington in which he stands accused of plotting to overturn the 2020 election.
His lawyers are now trying to apply that ruling to the documents case. In a 10-page motion, they asked Judge Aileen Cannon, who is overseeing the proceedings, to allow them to file additional briefings on immunity and to freeze nearly all pretrial activity until she resolves the issue.
“Resolution of these threshold questions is necessary to minimize the adverse consequences to the institution of the presidency arising from this unconstitutional investigation and prosecution,” the lawyers wrote.
The indictment of Trump in the documents case is focused on actions that took place after he left the White House and accuses him of illegally retaining sensitive national security material and obstructing government efforts to get it back from his post-presidential residence in Florida.
It is not clear whether Cannon will prove to be open to an argument that the Supreme Court’s ruling is applicable in the documents case. The court’s decision was based on the idea that a president should not be subject to prosecution for actions taken in connection with constitutional duties or broadly defined official acts.
Trump’s lawyers have already asked Cannon to grant him immunity to the charges because he claims to have deemed the classified materials at issue to be his personal property before he left the White House under a law known as the Presidential Records Act.
That decision, the lawyers said, was taken in Trump’s official role as president and so, under the Supreme Court’s decision, could not form the basis of a criminal charge.
Trump’s attempt to freeze the classified documents case is another example of his strategy of playing his various criminal proceedings against each other in an effort to delay them all for as long as possible.
This week, a state judge in Manhattan pushed back Trump’s sentencing on his criminal conviction there to weigh whether the Supreme Court’s immunity decision could imperil the guilty verdict.
The election interference case in Washington was frozen in place in December so that Trump could pursue a lengthy process of appealing a decision by the trial judge, Tanya Chutkan, who denied his original request for immunity.
Most legal issues can only be appealed after a defendant is found guilty at trial. But issues involving immunity are different, permitting an immediate appeal in the middle of a criminal prosecution. That is because they turn on the question of whether the charges should have been brought in the first place.
Trump’s request to impose a similar freeze on the documents case is unusual for any number of reasons — including the fact that he is not asking for the matter to be put on hold to pursue an appeal. There is nothing to appeal, given that Cannon has not yet issued a ruling on his request for immunity in the case.
Trump’s lawyers first brought up the question of immunity to Cannon in a motion filed in February, and their arguments were fairly far-fetched.
Prosecutors in the office of special counsel Jack Smith who is handling both federal cases against Trump, have scoffed at the idea that the Presidential Records Act could authorize Trump to designate some of the country’s most secret documents as his own personal records.
The prosecutors have also noted that the allegations in the documents indictment refer almost entirely to things Trump did after he left the White House — when, of course, he could no longer act in his official role as president.
Still, such leaps in logic have not stopped Trump’s lawyers from seeking to bolster their immunity claims. They have asked Cannon to freeze all work on the case except for motions and hearings pertaining to a single issue: Smith’s attempt to bar Trump from making public remarks that might endanger FBI agents working on the case.
As part of their request, Trump’s lawyers also asked Cannon for permission to file additional papers on a separate legal question: whether or not Smith was properly appointed to his job as special counsel.
In the Supreme Court’s ruling on immunity, one justice, Clarence Thomas, wrote a concurrence suggesting that Smith had been given his post without a legal basis. Thomas mentioned that issue even though none of his other colleagues brought it up and despite the fact that it had never been raised in the election interference case the court was ostensibly considering.
Cannon, however, has shown great interest in the question of Smith’s appointment, holding two days of unusual hearings last month in U.S. District Court in Fort Pierce, Florida, to discuss whether there was a legal basis to put him in place and fund his office.
Thomas’ concurrence was widely read by legal scholars as an invitation to Cannon to push further on the issue of Smith’s appointment. And that is what Trump’s lawyers have now asked her to do.
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