Judge suggests motion to dismiss Trump documents indictment ‘premature’

(FORT PIERCE, Fla.) — Former President Donald Trump is in a Florida courtroom where his attorneys are arguing for the dismissal of his federal classified documents case.

Special counsel Jack Smith, who brought the charges against Trump, is also in attendance.

U.S. District Judge Aileen Cannon began the hearing without making any mention of the case’s trial date and instead directed the defense lawyers to begin arguing their motion to dismiss based on unconditional vagueness.

“These charges must be struck and dismissed,” defense lawyer Emil Bove argued.

Bove suggested that Trump is a victim of a double standard compared to other presidents who allegedly retained sensitive information, directly mentioning the conduct of Presidents Bill Clinton, Ronald Reagan, and Joe Biden.

Cannon responded to the defense argument with skepticism – at one point suggesting the defense motion was “premature” – and peppered Bove with questions about definitions and hypotheticals of Trump’s conduct.

“When does it become unauthorized?” Cannon asked.

“President Trump designated the records as personal when he took them out of the White House,” Bove said.

“What is your definition of unauthorized?” Cannon later asked.

“Judge – I don’t have one, and that is why the statute is unconstitutionally vague applied to President Trump,” Bove said.

Cannon had scheduled the hearing in Fort Pierce, Florida, to consider two of Trump’s motions to dismiss the case based on what Trump’s attorneys claim is Smith’s unconstitutionally vague use of the Espionage Act and his application of the Presidential Records Act.

In response, Smith had argued that the former president’s motions to dismiss the case are yet another example of Trump believing he is above the law.

“Trump’s claims rest on three fundamental errors, all of which reflect his view that, as a former President, the Nation’s laws and principles of accountability that govern every other citizen do not apply to him,” prosecutors wrote in a filing responding to Trump’s motion to dismiss based on the Presidential Record Act.

In addition to Trump, his co-defendants in the case, aide Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, were expected to attend the hearing.

The full-day hearing comes one day after a Georgia judge dismissed six counts of the sprawling election interference case against Trump and 18 co-defendants, including three counts against the former president himself.

The ruling leaves Trump still facing 10 counts in Georgia, where he and the other defendants pleaded not guilty to all charges last August. Four of Trump’s co-defendants subsequently took plea deals in exchange for agreeing to testify against other defendants in that case.

The Presidential Records Act

In the hearing Thursday, the first motion to dismiss that Cannon will consider relates to a law that originated from another moment in history when a president faced the prospect of criminal charges.

Enacted in the years following the Watergate scandal — when lawmakers feared President Richard Nixon might destroy records upon leaving office — the 1978 Presidential Records Act governs the ownership and preservation of presidential records.

Trump’s lawyers have argued that the law conferred on Trump the power to designate the documents at issue as personal, making his retention of the documents at his Mar-a-Lago estate lawful.

“President Trump was still the President of the United States when, for example, many of the documents at issue were packed (presumably by the GSA), transported, and delivered to Mar-A-Lago,” a filing from Trump’s attorneys said.

Defense lawyers have also argued that the law does not permit criminal charges, and that Trump had the final say over the handling of presidential records, rather than officials at the National Archives, where presidential records are stored once the president has left office.

“DOJ and NARA have adopted this position with respect to government officials whose last name is not Trump,” the filing said regarding the Justice Department and the National Archives and Records Administration.

Smith, in his filing, has responded to this argument by writing that the records at the center of the case are undoubtedly presidential records — not Trump’s personal records — and that the former president is trying to argue that the law does not apply to him.

“Even if the raft of highly classified documents that Trump took from the White House to Mar-a-Lago were somehow categorized as ‘personal’ under the PRA, that would not render his retention of those documents ‘authorized,'” Smith wrote.

The Espionage Act

Defense lawyers have also argued that the part of the Espionage Act related to the retention of defense materials is unconstitutionally vague when applied to former President Trump.

Characterizing the section of the law at issue as “the most confusing and complex of all the federal espionage statutes,” defense lawyers wrote that charging Trump with the law violates “the due process principles and separation-of-powers concerns that animate the vagueness doctrine.”

Citing parts of special counsel Robert Hur’s report into President Joe Biden’s retention of classified documents, for which Biden was not charged, they argued that penalizing Trump for retaining documents amounts to selective and vindictive prosecution.

“There is far too much indeterminacy around the meaning of ‘unauthorized possession’ with respect to President Trump and the types of documents at issue,” the filing said.

Prosecutors responded by arguing the statute is perfectly clear — and that Trump ought to have known that, given his previous position as commander-in-chief. Trump’s attempts to delay and obstruct the investigation are also telltale signs that he was violating the law, prosecutors said.

“The statute’s prohibitions are clear,” the filing said. “And as a former President, Trump could not have failed to understand the paramount importance of protecting the Nation’s national-security and military secrets, including the obligations not to take unauthorized possession of, or willfully retain, national defense information.”

An uncertain trial date

The trial itself is currently scheduled to start in mid-May, but earlier this month Judge Cannon held a hearing to hear arguments over moving the trial to a new, later date. Smith’s team proposed July 8 as a new date, while Trump’s lawyers argued that the trial should take place after the 2024 presidential election.

Cannon did not issue any rulings or make any formal scheduling changes regarding the trial’s start date, which is still scheduled for May 20.

“A lot of work needs to be done in the pretrial phase of this case,” the judge said.

It is unclear if Cannon will address the trial date at Thursday’s hearing, as Trump’s legal calendar continues to fill up. The former president is scheduled to go on trial in New York on March 25 on charges of falsifying business records in connection with a hush payment to adult film actress Stormy Daniels ahead of the 2016 election. He has denied all wrongdoing.