It’s not exactly news when former President Donald Trump’s legal team moves to dismiss the charges filed against him, either by special counsel Jack Smith or other parties.
However, it is news when part of the motion is specifically tailored for Smith, noting that his close ties to the Democrats and the attorney general made his appointment a mockery of the special counsel system.
According to The Hill, the move to dismiss came in Trump’s classified documents case, the first set of charges that were brought by special counsel Smith. Trump attorneys Todd Blanche and Chris Kise argued in a brief submitted Thursday that, because of presidential immunity, Trump cannot be prosecuted for keeping the documents at his Mar-a-Lago residence in the Sunshine State.
Blanche and Kise argued that, before Trump left the White House, he designated the records that were kept there as personal under the Presidential Records Act.
“President Trump’s decision to designate records as personal and cause them to be removed from the White House plainly constitutes an official act within the ‘outer perimeter’ of the president’s official duties,” they wrote in court papers.
Furthermore, the attorneys argued that “Article III courts” — known more colloquially as “constitutional courts” — “cannot sit in judgment directly over the president’s official acts, and that any attempt to do so violates the separation of powers.”
“In Marbury v. Madison, Chief Justice Marshall described this doctrine as foundational and self-evident. ‘By the constitution of the United States, 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,’” they wrote.
“When it comes to the president’s official acts, ‘whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.’ … ‘[N]othing can be more perfectly clear than that’ the president’s discretionary ‘acts are only politically examinable.’ … ‘Questions … which are, by the constitution and laws, submitted to the executive, can never be made in this court.’ The president’s official acts, therefore, ‘can never be examinable by the courts.’”
While these arguments may sound familiar — indeed, they’re almost materially identical to those made before the D.C. Circuit Court where Trump is being charged in connection with the events of Jan. 6, 2021, and which the court rejected — his lawyers argued that the decision was constitutionally incorrect. (The Supreme Court has yet to take up the case.)
Does Trump have presidential immunity in this case?
“The D.C. Circuit’s analysis is not persuasive for many of the reasons discussed below, 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. This Court should not follow the D.C. Circuit’s non-binding, poorly reasoned decision,” the motion reads.
They also said that, should the immunity motion fail, the charges were “unconstitutionally vague,” since prosecutors are required to show Trump had “unauthorized possession” of documents that relate “to the national defense.”
“Since at least 1941, courts in cases with less vexing features than this one have acknowledged grave infirmities in the language of [the charge] and endeavored to ‘save’ the statute. That approach is inconsistent with the due process principles and separation-of-powers concerns that animate the vagueness doctrine,” they wrote.
Moreover, they said Trump was entitled to view one of the records in question, due to his security clearance.
“Whatever [the charge] means—and that much is unconstitutionally unclear—the Authorization Clause does not prohibit possession of a document by the holder of a valid security clearance, and someone who is cleared to the appropriate level cannot willfully violate the statute,” the motion read.
However, the fun part came in a motion “to dismiss the indictment based on the unlawful appointment and funding of special counsel Jack Smith” — and, at the least, to have him removed from the case.
“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. As such, Jack Smith lacks the authority to prosecute this action,” the attorneys wrote, before quoting a friend-of-the-court brief in the D.C. case from former Attorney General Edwin Meese III, and law professors Steven Calabresi and Gary Lawson of the Federalist Society, a conservative judicial group: “[T]hat is a serious problem for the rule of law—whatever one may think of former President Trump or the conduct Smith challenges in the underlying case.”
“This is an issue of first impression in the Eleventh Circuit, and it requires that the Superseding Indictment be dismissed,” Trump’s lawyers noted.
As the motion and the friend-of-the-court brief noted, the special counsel is supposed to be someone outside of the Department of Justice, if the attorney general is to appoint one. However, Smith has an extensive history with the DOJ — including prosecuting former Virginia GOP Gov. Robert McDonald, whose conviction was unanimously overturned by the Supreme Court.
And while one is not necessarily responsible for the actions of one’s other monogamous half, consider that Smith’s wife, Katy Chevigny, was credited as a producer of the hagiographical adaptation of Michelle Obama’s memoir “Becoming” for Netflix:
It’s perhaps conceivable that the Florida court is more amenable to Trump’s immunity claims than the relatively liberal D.C. Circuit court is. (Of the three-judge panel that decided on Trump’s immunity before that court, two were appointed by President Joe Biden — Judges Michelle Childs and Florence Pan — and only one by a Republican president, Judge Karen LeCraft Henderson, who was appointed by George H. W. Bush.)
However, it’s another shot at special counsel Smith and his office, which — according to Trump’s lawyers — is being run as an extension of Merrick Garland’s DOJ, which is exactly what it shouldn’t be. It’s a shot across the special counsel’s bow which could be devastating, in the long run, for its legitimacy and its ability to try Trump before the election, as Smith so desperately wants to do.
