Just hours after the Supreme Court ruled that presidents can do crimes in office as long as they commit them “officially,” Trump’s lawyers were already citing it as evidence that the criminal cases against him must be dismissed. (We broke down that nightmare ruling in Episode 43 of the podcast.)
In the stolen documents case, Trump’s attorneys filed a notice of supplemental authority with respect to a motion to dismiss based on the newly invented doctrine of absolute presidential immunity. They demanded and got Judge Cannon to freeze the case to give them time to explain why it should be disappeared entirely in light of the Supreme Court’s wildly anti-democratic opinion.
The filing demonstrates just how totally unworkable SCOTUS’s ruling will be to implement. Almost as if that’s exactly what they intended.
The Motion to Dismiss
Trump’s lawyers Todd Blanche and Chris Kise filed the original motion in February, alleging that their client was “immune from prosecution on Counts 1 through 32 because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act (‘PRA’) and to cause the records to be moved from the White House to Mar-a-Lago.” In essence, they planned to assert as a defense that Trump magically transformed those government documents, even the ones bearing classified markings, into personal records.
Note that this wasn’t something he claimed during 2021 and most of 2022 when the National Archives (NARA) was asking nicely that he return them. Trump and his lawyer both conceded that the documents removed from the White House were presidential records.
Note also that Trump isn’t charged with stealing the documents: He’s charged with illegally retaining national defense information under the Espionage Act and obstructing a subpoena for the return of documents bearing classified markings.
Neither charge depends upon Trump being President. Indeed, for the Espionage Act charges, if Trump had been charged with crimes based on his conduct as president, he would have been charged under 18 U.S.C. § 793(f), which applies to those with “lawful possession or control of any document.”
Instead, counts 1-32 of the Superseding Indictment charge Trump under the immediately preceding subsection, § 793(e), as one “having unauthorized possession of, access to, or control over any document … relating to the national defense” and who “willfully retains the same.”
Similarly, the remaining counts relate to the 2022 coverup of his efforts to prevent the government from recovering the aforementioned documents, including allegations that Trump and his minions lied to the FBI and the grand jury from May through August of that year.
All of that is conduct which took place after Trump left the White House. And if SCOTUS’s conservatives are concerned about allowing a prosecutor “to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge,” presumably Special Counsel Jack Smith would happily proceed to trial with no evidence from Trump’s presidency.
But that’s not what Trump wants! He wants to turn this newly invented official acts immunity into both a sword and a shield: He plans to introduce evidence of official acts himself as a defense to the charges, and then point to that evidence as a reason that the case has to be dismissed.
All of which sounds kinda bad, and so Trump’s lawyers are doing everything they can to dance around it.
After SCOTUS Breaks Shit
The request to supplement the record is spectacularly inappropriate, as well as being full of gross distortions of fact and law. Blanche and Kise claim that President Biden’s response to the Supreme Court decision constitutes an admission that he is engaged in “lawfare … linking Jack Smith’s abuse of the criminal justice process to Biden’s desperate and failing attempts to communicate with voters prior to the 2024 presidential election.” They characterize an anonymously-sourced story about the special counsel in the Washington Post as “an apparent response to President Biden’s exceedingly weak debate performance on June 27.” They level ad-hominem attacks at the prosecutor, safe in the knowledge that Judge Cannon — who just days ago chastised the prosecutors about their duty to “maintain discipline, decorum, and discretion at all times” — will never ding them for it.
As for the legal argument, the document is perilously thin. Perhaps this is because a cursory examination of the position reveals its inherent contradiction.
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