In four motions filed late last week in the U.S. District Court for the District of South Florida, Donald Trump’s lawyers seek dismissal of 40 felony charges based on his retention of classified documents after leaving the White House in January 2021. They argue that his decision to keep the documents is shielded by “absolute” presidential immunity for “official acts,” that he had complete discretion to designate records as personal rather than presidential, and that the charges related to mishandling “national defense information” are based on an “unconstitutionally vague” statute. They also argue that Special Counsel Jack Smith, who obtained the indictment, was improperly appointed, making all of the charges invalid.
The motion based on presidential immunity, which seeks dismissal of the 32 counts alleging unlawful retention of specific classified documents, rehashes the argument that a D.C. Circuit panel unanimously rejected this month in the federal case based on Trump’s attempts to remain in office after he lost the 2020 presidential election. “The D.C. Circuit’s analysis is not persuasive,” Trump’s lawyers write, “and President Trump is pursuing further review of that erroneous decision, including en banc review if allowed, and review in the U.S. Supreme Court if necessary.” They say U.S. District Judge Aileen M. Cannon, who is overseeing the documents case in Florida, “should not follow the D.C. Circuit’s non-binding, poorly reasoned decision.”
As Trump sees it, the separation of powers bars federal courts from sitting in judgment of a former president’s “official acts,” whether in the context of a civil case or in the context of a criminal prosecution. The D.C. Circuit, including Republican appointee Karen L. Henderson, was troubled by the implications of that position, which would allow presidents to commit grave crimes, including assassination of political opponents, without being held accountable unless they were impeached and removed from office based on the same conduct.
Trump’s lawyers read the Supreme Court’s 1803 decision in Marbury v. Madison as prohibiting judicial review of any presidential act. But as the D.C. Circuit emphasized, federal courts historically have passed judgment on the legality of presidential decisions, most famously in the 1952 case Youngstown Sheet & Tube Co. v. Sawyer. In that case, the appeals court noted, the Supreme Court “exercised its cognizance over Presidential action to dramatic effect” by holding that “President Harry Truman’s executive order seizing control of most of the country’s steel mills exceeded his constitutional and statutory authority and was therefore invalid.”
Strictly speaking, however, Youngstown dealt with an order issued by the secretary of commerce rather than the president himself. “To be sure,” Trump’s lawyers say, federal courts “sometimes review the validity of the official acts of subordinate executive officials below the president, and such review may reflect indirectly on the lawfulness of the president’s own acts or directives. But the authority of judicial review of the official acts of subordinate officers has never been held to extend to the official acts of the president himself.”
Marbury drew a distinction between “discretionary” and “ministerial” acts. Regarding the first category, Chief Justice John Marshall said in the majority opinion, “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” In that situation, he said, “the subjects are political and the decision of the executive is conclusive,” meaning it “can never be examinable by the courts.”
But that is not true, Marshall added, “when the legislature proceeds to impose on [an executive official] other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts.” Then “he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others.” In those circumstances, he is acting as a “ministerial officer compellable to do his duty, and if he refuses, is liable to indictment.”
Although Trump’s lawyers do not explicitly address that distinction, they argue that the counts charging him with illegally retaining 32 listed classified documents are based on 1) presidential decisions that 2) fell within the “discretionary” category. Both of those conclusions seem dubious.
The indictment says Trump “caused scores of boxes, many of which contained classified documents, to be transported” from the White House to Mar-a-Lago. Trump’s lawyers say the indictment “makes clear that this decision and the related transportation of records occurred while President Trump was still in office.”
As Trump’s lawyers see it, in other words, the first 32 counts are all based on actions that he took as president. That interpretation seems problematic based on the text of the statute and the wording of the indictment.
Trump is charged with violating 18 USC 793(e), which applies to someone who has “unauthorized possession” of “information relating to the national defense” and “willfully retains” it when he “has reason to believe” it “could be used to the injury of the United States or to the advantage of any foreign nation.” The indictment says Trump “did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them.”
Retaining the documents and failing to deliver them are distinct from the initial act of transportation. While the latter may have happened while Trump was still in office, the former included his conduct during the year and a half that elapsed from the end of his term until an FBI search of Mar-a-Lago discovered the 32 documents, along with 70 or so others marked as classified, on August 8, 2022. During that time, Trump delivered some classified documents but retained others, even after he claimed to comply with a federal subpoena demanding their return. But for that continuing resistance, the FBI would not have obtained a search warrant and Trump would not be facing these charges.
Why does Trump think the initial act of bringing the documents to Mar-a-Lago was within his discretion as president? Under the Presidential Records Act, he argues in another motion, he had complete authority to classify documents as personal, meaning he could keep them rather than turn them over to the National Archives. His possession of those documents therefore was not “unauthorized,” as required for a conviction under Section 793(e). And since the FBI’s investigation was not legally justified, Trump’s lawyers say, the other eight counts, including conspiracy to obstruct justice, concealing records, and lying to federal investigators, also should be dismissed.
That reading of the Presidential Records Act is counterintuitive given its motivation and text. The impetus for the law was President Richard Nixon’s assertion of the very authority that Trump is now claiming. Rather than allow a president to destroy or retain official documents at will, Congress declared that “the United States shall reserve and retain complete ownership, possession, and control of Presidential records.”
The law defines presidential records as “documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” That term excludes “personal records,” defined as “all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”
As Trump reads the Presidential Records Act, however, it “conferred unreviewable discretion on President Trump to designate the records at issue as personal.” That interpretation would, on its face, render the statute a nullity. If a president has total discretion to decide that a document is “of a purely private or nonpublic character,” regardless of its content, the situation that Congress sought to rectify would be unchanged in practice.
Trump also argues that Section 793(e), as applied to him, violates his Fifth Amendment right to due process because it is so vague that it does not “give people of common intelligence fair notice of what the law demands of them.” In particular, his lawyers say, the phrases “unauthorized possession,” “relating to the national defense,” and “entitled to receive” have no clear meaning.
Finally, Trump says the indictment is invalid because “the Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States.” Smith therefore “lacks the authority to prosecute this action.”
The Appointments Clause empowers the president to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Because there is “no statute establishing the Office of Special Counsel,” Trump’s motion says, “Smith’s appointment is invalid and any prosecutorial power he seeks to wield is ultra vires”—i.e., without legal authority.
This question, the motion says, is “an issue of first impression in the Eleventh Circuit,” which includes Florida. But in 2019, the D.C. Circuit rejected the argument that Trump is deploying here, holding that Special Counsel Robert Mueller was an “inferior” rather than “principal” officer, meaning that Acting Attorney General Rod Rosenstein had the authority to appoint him.
Trump is asking Cannon to approve “discovery and pretrial hearings on factual disputes” relevant to his motions. That is apt to delay the trial in this case, which had been scheduled to begin on May 20.
The Section 793(e) charges require the government to show that the 32 documents listed in the indictment contained information that could compromise national security, a task complicated by their classified status. But the obstruction-related counts, which include allegations that Trump defied the federal subpoena, deliberately concealed classified records, and tried to cover up his cover-up by instructing his underlings to delete incriminating surveillance camera footage, may be the strongest charges that he faces across four criminal cases. Assuming the government can prove the facts it alleges in the indictment, it seems pretty clear that Trump is guilty of multiple felonies, including half a dozen that are punishable by up to 20 years in prison.
