Opinion: Why Trump can’t twist immunity to avoid classified documents prosecution

Editor’s note: Norman Eisen is a CNN legal analyst who writes,Trump Trial: The First Guide to Election Interference Criminal TrialsHe served as counsel to the House Judiciary Committee during the first impeachment and trial of former President Donald Trump. Timothy C. Parlatore is a CNN legal commentator, Navy veteran, criminal defense lawyer, and managing partner of the Parlatore Law Firm. He has represented clients in high-profile cases across the country, including against Trump during the investigative phase of the federal investigation. Joshua Kolb is an attorney with the Perry Law Firm and has served as a law clerk for the Senate Judiciary Committee. The views expressed in this commentary are their own. Read Further comments On CNN.

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Former President Donald Trump was quick to use the Supreme Court’s historic presidential immunity ruling last week to try to escape other criminal legal challenges, first successfully securing a stay in a New York court until September on his 34-count conviction for falsifying business records, then turning his attention to the state of Florida and Special Counsel Jack Smith’s secret documents prosecution.

Trump’s attempt to dismiss the case is frivolous and potentially self-defeating and should fail, but his request to the court will create a delay and help ensure the Mar-a-Lago case doesn’t go to trial before the end of the year.

The classified information case, which also includes 32 counts of willful retention of national defense information, making false statements, and conspiracy to obstruct justice, is arguably the most straightforward and most serious of the charges against Trump. While there are several complex legal and evidentiary issues related to the classified information that led Judge Eileen Cannon to postpone the trial in May, the alleged criminal conduct is straightforward and there is no dispute that Trump possessed classified documents after leaving office.

The government argues that Trump had no legal right to keep them and that he obstructed efforts by the Justice Department to retrieve them. Trump has pleaded not guilty.

On Friday, President Trump filed motions asking Judge Cannon to do two things: to allow a supplemental report on the impact of the Supreme Court’s presidential immunity decision, and to partially stay further proceedings in the case until the motion to dismiss the case based on presidential immunity and Smith’s authority as special counsel is resolved. On Saturday, the judge suspended some, but not all, of the deadline.

Notably, Trump’s complaint is conspicuously devoid of any explanation of how the Supreme Court’s immunity ruling, which holds that the president has “absolute” immunity for “official acts” related to the “exercise of core Constitutional powers,” but not for “unofficial acts,” affects this prosecution. Perhaps that’s because there is no serious argument that the immunity ruling would adversely affect the prosecution. We see no such argument whatsoever.

As is to be expected in a case involving post-presidential conduct, the indictment containing the charges against Trump is almost entirely about that. rear he Nowhere in the indictment does the government allege that Trump acted illegally before “12:00 p.m. on January 20, 2021, the time he left office.” Thus, by definition, any criminal conduct related to the storage of classified documents at Mar-a-Lago after noon that day would not be officially presidential conduct and potentially protected by the Supreme Court’s new standard.

The indictment also includes several allegations about Trump’s conduct while in office, but these merely provide further context for the charges. For example, the indictment details that Trump collected documents such as newspaper clippings and other personal memorabilia and placed government documents in boxes, that he made statements about controlling access to classified information while president, and that he was involved in a packing operation that included boxes “containing hundreds of classified documents” before leaving the White House on January 20, 2021.

“But none of these details are legally necessary for the Government to prove its case. Remember, this is a case of unlawful detention, not unlawful removal. While these allegations add further color to the Government’s case, the Government does not allege that these specific acts were criminal, and these portions of the indictment do not describe the conduct with which Mr. Trump is charged.”

Trump’s complaint contends that the Supreme Court’s ruling is overly lenient, arguing that the government cannot use evidence of official acts to prove a case involving non-official acts. However, a close reading of the ruling reveals that the Supreme Court only ruled on the ineligibility of “exempt conduct,” i.e., official presidential acts that are deemed illegal but that are protected from prosecution by immunity. This does not apply to any of the harmless presidential aberrations described above and contained in this indictment, so there is nothing to rule out.

If the Trump campaign’s outlandish interpretation is accepted by Cannon, it could affect how the government tries to prove its case at trial, but it wouldn’t cause the case to be dismissed. At worst, the allegations could be struck from the indictment, but it would have no effect whatsoever on the charges stemming from alleged post-presidential crimes.

Ironically, this broad interpretation may hurt rather than help Trump, since his former defense team maintained that the president was innocent of his actions. They argued that the way documents were handled in the White House that led to their transfer to Mar-a-Lago was a systemic problem across administrations. As a result, classified and unclassified documents have been found in the archives of former presidents and senior administration officials since President Jimmy Carter, and were famously found in President Joe Biden’s Delaware home after he served as vice president.

Therefore, how documents are handled, stored, and transferred at the end of an administration is likely to be a major factor. Helpful The evidence was presented as evidence for Trump’s defense to present to the jury, but now Trump’s legal team is foolishly moving to exclude it.

The remainder of Trump’s motion – his request for a partial stay – is similarly weak. Trump has cited various reasons to justify a stay of the proceedings, none of which are persuasive. Trump points to the immunity decision but has not adequately explained why the Court’s ruling applies here. Trump’s lawyers cite Chief Justice John Roberts’ opinion that “the question of whether, consistent with the separation of powers, the President may be held liable for specific actions must be addressed at the outset of the proceeding.” But Trump’s earlier motion for immunity is still pending, and Judge Cannon has not yet ruled, which is the proper avenue for this dispute.

Trump then highlighted Justice Clarence Thomas’s single concurring opinion in the immunity decision, questioning the legitimacy of the appointment of a special counsel, but it was merely the opinion of one justice on an issue entirely unrelated to the case, and was not explained or argued by either side. Thus, Justice Thomas’ opinion does not provide a legal basis for any relief.

Finally, Trump argues that the Justice Department’s unspoken policy, the so-called “60-day rule,” intended to avoid being seen as election interference by not moving to indict candidates two months before Election Day, is too close to the election for the process to continue, and therefore a stay is essentially necessary.

This is a misrepresentation of the “60-day rule,” which does not apply to this ongoing litigation. The rule focuses on investigative procedures and the filing of new cases, not on moving forward with existing cases. Trump was indicted in Florida 17 months before the 2024 election, and the case has featured significant litigation in the intervening 13 months.

“The Department of Justice has no legal obligation to discontinue its prosecution of Trump at this time, and this policy is merely guidance to subordinates within the Department of Justice, not to judges. If the Special Counsel chooses to proceed, that would be sufficient, and it would be inappropriate for Cannon to cite Department of Justice policy to justify his actions as a jurist.”

And even if the “60-day rule” applied in this case (it doesn’t), the 60-day grace period before the election has yet to come — in fact, we’re far from that deadline — and the fact that the Trump campaign cited the policy to support a further delay reflects how weak his argument is.

Despite the apparent lack of merit to Trump’s allegations, Cannon temporarily extended several deadlines, including expert disclosure and document production, to allow him to report on whether to grant a stay of execution.

But Trump’s victory is temporary. Just as there is no legal basis for the application of immunity to this lawsuit, there is no legal basis for Trump’s victory either, and further deadlines remain unaffected. It will be interesting to see whether Trump’s legal team can present a more compelling case for an extension, but it is unlikely.

Just because these arguments should fail doesn’t necessarily mean they all will fail. For example, Judge Cannon could use Thomas’s single concurring opinion to rule that Smith’s role was not appropriate and therefore the case must be dismissed, undoubtedly sending the matter back to the Supreme Court to resolve. Or she could be sympathetic to the argument that Trump effectively declassified the documents under the authority of the Presidential Records Act and determine that it was a formal act and therefore the documents were properly in Trump’s 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 phase of this case, has refused to use it in his defense. And even Cannon seemed to be aware of it months ago.

Of course, the case was almost certain to be delayed until 2025. If Trump loses the election, he would go to trial next year.

But the Supreme Court’s decision does not completely absolve Trump, even if he wins and the lawsuit is dismissed, because it leaves impeachment open as a remedy. Here, the explicit text of the Constitution applies: “Any party convicted shall be liable to prosecution, trial, sentence and punishment according to law.” A president who is impeached and convicted: do We cannot assume responsibility and cannot claim exemption from liability.

Last week’s Supreme Court decision only limits the Justice Department’s ability to act independently against current and former presidents, but does not affect Congress’ oversight or impeachment powers in any way, and likely will not extend protections even after Congress acts.

Whether or not to act here is a question for another day, but when Cannon gets down to it, he should not, and probably won’t, take any action in Trump’s favor.