Donald Trump moved on Friday to capitalize on the US supreme court’s decision to confer broad immunity to former presidents, asking the federal judge overseeing his criminal case for retaining classified documents to take a scalpel to any charges that were “official” acts that could not be prosecuted.
The supreme court this week held that former presidents enjoyed some immunity from criminal prosecution for certain conduct they undertook in office, which also meant evidence of immune acts could not be introduced as evidence at any trial even if they did not form part of the charges.
The framework of criminal accountability for former presidents, as laid out by the ruling, has three categories: core presidential functions that carry absolute immunity, official acts of the presidency that carry presumptive immunity, and unofficial acts that carry no immunity.
The request from Trump’s lawyers did not say which parts of the indictment they considered to be official conduct that was immune. But if the US district judge Aileen Cannon agrees to go through the charges, it would almost certainly further delay the case by months.
The filing not only showed the far-reaching ramifications of the immunity decision, which is now affecting Trump’s documents case in Florida even though the ruling originated from a pre-trial appeal in the former president’s 2020 election subversion case in Washington; it also demonstrated Trump’s intent to use it to destroy the substance of the cases.
The 10-page filing from Trump’s lawyers asked Cannon for permission to file new briefs, arguing the immunity decision gutted prosecutors’ position that he had no immunity and “further demonstrates the politically-motivated nature of their contention that the motion is ‘frivolous’”.
But Trump’s filing was doubly notable as it asked Cannon to pause all other proceedings in the case until she decided whether the special counsel, Jack Smith, and his prosecution team were authorized to bring the case in the first place.
In a recent motion to dismiss the case, Trump’s lawyers argued that Smith had been improperly appointed since he was not named to the role by the president or approved by the Senate like other federal officers are – and that the attorney general, Merrick Garland, had no legal power to do so by himself.
The motion appeared destined for denial after a recent hearing in federal district court in Fort Pierce, Florida, when prosecutors countered that Garland – under the appointments clause of the US constitution – had authority to name “inferior officers” like special counsels to act as subordinates.
But as part of the supreme court’s decision, Justice Clarence Thomas gave the notion new momentum. “If this unprecedented prosecution is to proceed, the lower courts should thus answer these essential questions concerning the special counsel’s appointment,” Thomas wrote, albeit with respect to the 2020 election case.
