Opinion: Why Trump can’t twist the immunity ruling to squirm out of his classified documents indictment

Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of former President Donald Trump. Timothy C. Parlatore is a CNN legal commentator, Navy veteran, criminal defense attorney and managing partner of Parlatore Law Group, LLP. He has represented clients in high-profile cases throughout the country, including Trump during the investigative phases of his federal investigations​. Joshua Kolb is an attorney at Perry Law and served as law clerk for the Senate Judiciary Committee. The views expressed in this commentary are their own. Read more opinion at CNN.

Former President Donald Trump quickly seized on the Supreme Court’s historic presidential immunity ruling last week to attempt to wriggle out of his other criminal legal troubles. First he succeeded in New York court in getting a delay until September for his sentencing on 34 convictions for falsifying business records. Then he turned to Florida and special counsel Jack Smith’s classified documents prosecution.

Norm Eisen - Courtesy Norm Eisen
Norm Eisen - Courtesy Norm Eisen

Trump’s effort to dismiss that case is spurious, potentially self-destructive and should fail —but his request to the court will result in delays that will help ensure the Mar-a-Lago prosecution will not go to trial this year.

The classified information case, which includes 32 counts of willful retention of national defense information and also alleges false statements and conspiracy to obstruct justice, is arguably the most straightforward of the prosecutions against Trump — and is of the utmost seriousness. While there are some complicated legal and evidentiary issues related to classified information that led Judge Aileen Cannon to postpone the trial in May, the alleged criminal activity is straightforward and this fact is not in dispute: Trump possessed classified documents after he left office.

Tim Parlatore - Courtesy Tim Parlatore
Tim Parlatore - Courtesy Tim Parlatore

The government claims he had no legal right to retain them and that he allegedly obstructed the Justice Department’s attempt to retrieve them. Trump has pleaded not guilty.

On Friday, Trump filed a motion asking Cannon for two things: Permission to file supplemental briefing regarding the implications of the Supreme Court’s presidential immunity decision, and a partial stay of further proceedings in the case until Trump’s motions to dismiss based on presidential immunity and Smith’s authority as special counsel are resolved. On Saturday, the judge stayed some but not all of the deadlines.

Notably, Trump’s motion is remarkably light on any explanation of how the Supreme Court’s immunity ruling — which held that a president has “absolute” immunity for “official acts” connected to the “exercise of his core constitutional powers” but “enjoys no immunity for his unofficial acts” — impacts this prosecution. Perhaps the reason for this is that there is no serious argument that the immunity decision impairs the prosecution. We certainly see none.

Joshua Kolb - CJ Studios
Joshua Kolb - CJ Studios

As you would expect in a case about post-presidential conduct, the indictment containing the allegations against Trump deals almost entirely with that. Each of the offenses charged against Trump alleges conduct that began after he left office. Nowhere in the indictment does the government allege Trump did anything illegal before “12:00 p.m. on January 20, 2021” when “Trump ceased to be president.” Therefore, definitionally, none of the alleged criminal conduct related to retaining classified documents at Mar-a-Lago after noon on that day would be an official presidential act and conceivably protected by the Supreme Court’s new standard.

The indictment does include some allegations pertaining to Trump’s conduct while he was in office. But these merely provide further context for the charges. For example, the indictment details Trump’s habits of collecting documents including news clippings and other personal memorabilia, and including government documents in the boxes; a statement he made while president about controlling access to classified information; and his involvement in the packing process, including boxes “containing hundreds of classified documents,” before leaving the White House on January 20, 2021.

But none of those details are legally necessary for the government to prove its case. Remember, this is a case of unlawful retention, not unlawful removal. While those allegations provide further color for the government’s case, the government does not allege those particular behaviors to be criminal, and these parts of the indictment do not describe conduct for which Trump is being charged.

Trump’s motion relies on an overly generous interpretation of the Supreme Court’s decision, asserting that the government could not use evidence of official conduct to prove a case related to unofficial acts. However, a closer reading of the decision reveals that the court only ruled on the inadmissibility of “immune conduct,” or official presidential acts that would be considered unlawful but are shielded from prosecution by immunity. As this applies to none of the stray benign presidential conduct that we have described above and that is included in this indictment, there is nothing to exclude.

If the Trump team’s fanciful interpretation were accepted by Cannon, that may impact the way in which the government would try to prove its case at trial. But it does nothing to render the case dismissible. At worst, those allegations may be struck from the indictment, but they will have zero impact on the charges stemming from alleged post-presidential criminal conduct.

Ironically, this broad interpretation may hurt Trump more than help him, as his prior legal team argued that the presidential conduct was exculpatory. They contended that the manner in which documents are handled at the White House, which led to them being moved to Mar-a-Lago, is an institutional problem that has crossed administrations. That has led to a mixture of classified and unclassified documents being found in the boxes of some former presidents or administration officials since Jimmy Carter, including famously at President Joe Biden’s home in Delaware after his tenure as vice president.

Thus, the manner in which documents are handled, stored and then moved at the conclusion of an administration is something that would likely be helpful for Trump’s defense to present to the jury. Yet his lawyers are now unwisely moving to exclude that evidence.

The remainder of Trump’s motion — requesting a partial stay — is equally weak. Trump relies on a grab bag of reasons to justify halting the case — none of them convincing. He points to the immunity decision but does not adequately explain why the court’s ruling would be applicable here. Trump’s lawyers quote from Chief Justice John Roberts’ opinion that “questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding.” But Trump’s earlier motion on immunity grounds is still pending, Cannon has yet to rule on it, and that is the appropriate vehicle for this dispute.

Trump then highlights Justice Clarence Thomas’ solo concurrence in the immunity decision, in which he cast aspersions on the validity of the special counsel’s appointment. But that was the view of just one justice on an issue totally collateral to the case being decided and neither briefed nor argued by either side. Therefore, Thomas’ opinion provides no legal basis for any relief whatsoever.

Finally, Trump claims that unwritten Justice Department policy — the so-called “60-day rule,” which aims to avoid perceived interference in elections by not moving to prosecute candidates two months out from Election Day — essentially requires a stay because we are getting too close to the election for proceedings to continue.

This is a misstatement of the “60-day rule,” which does not even apply to this ongoing litigation; it is focused on investigative steps and filing new litigation, not going forward with existing cases. Trump was indicted in Florida 17 months before the 2024 election, and the case has featured substantial litigation in the intervening 13 months.

The Justice Department has absolutely no legal obligation to halt Trump’s prosecution now. And the policy is only guidance for subordinates within the Justice Department itself, not judges. If the special counsel chooses to keep litigating the case, that is sufficient to continue — and it would be inappropriate for Cannon to cite Justice Department policy as justification for her own actions as a jurist.

And, even if the “60-day rule” applied to this case (which it doesn’t), we are not in the 60-day window before the election — in fact, far from it. The fact that Trump’s team resorted to citing this policy to support even further delay reflects how weak his arguments are.

Notwithstanding the lack of any obvious merit in Trump’s motion, Cannon temporarily paused some deadlines, including over expert disclosures and document production, in order to allow for briefing over whether to grant a stay.

But Trump’s victories will be temporary — there’s no legal basis for them, just as there is none for the extension of the immunity doctrine to this case, and other deadlines further out in time are unaffected. We will see if Trump’s lawyers come up with more compelling reasons for delay but doubt they will.

Just because these arguments should fail doesn’t mean all of them necessarily will. It is possible, for instance, that Cannon will use Thomas’s solo concurrence to rule that Smith’s role is not proper and the case must therefore be dismissed, undoubtedly setting up a return to the Supreme Court to resolve the issue. Or she might find sympathy for the argument that Trump effectively declassified the documents under the authority of the Presidential Records Act, thereby finding that was an official act and thus the documents were properly within his possession. Two of the authors (Eisen and Kolb) have written here about why that argument is baseless and the third author (Parlatore), who represented Trump in the investigative phases of this case, declined to use that as a defense. And even Cannon seemed to recognize that, too, a few months ago.

Of course, the case was already virtually certain to be delayed until 2025. If Trump loses the election, he will face trial next year.

But the Supreme Court’s opinion does not let Trump off the hook entirely even if he wins and dismisses the case. That is because  the court’s decision leaves impeachment intact as a remedy. Here, the plain text of the Constitution will apply: that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Any president who is impeached and convicted shall be liable and can claim no immunity.

Last week’s Supreme Court decision only restricts the Department of Justice’s ability to act on its own against a current or former president and does not in any way affect the powers of Congress to exercise oversight or impeachment. Presumably, it also does not extend protection after Congress has acted.

Whether it would act here is a question for another day, but once Cannon gets to the merits, she should not — and likely will not — act in favor of Trump.

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