Donald Trump is hoping that the Supreme Court’s ruling in the election meddling case could give him a third procedural victory, this time in the case he is accused of withholding state secrets after leaving office.
Legal experts say the ruling gives the former president several new opportunities to challenge the indictment by special counsel Jack Smith.
On Friday, he asked Judge Aileen Cannon to further adjourn the case, which still has no court date due to a series of slow motions yet to be decided, to allow the impact of the decision to be measured. Trump also asked the judge to consider an objection from Justice Clarence Thomas to bolster his argument that Smith should not be allowed to continue as a prosecutor.
But these are not the only options Trump may try to drop the case after the court’s final decision. The Supreme Court ruled 6-3 decision that presidents are protected from prosecution for official acts and enjoy “at least presumptive immunity from criminal prosecution” for actions “within the outer perimeter of their official responsibility.”
While Trump is not entitled to immunity for unofficial actions, the burden is on the government when there is a close call.
Much of the indictment focuses on Trump’s time since leaving office, which legal experts say makes it difficult to argue they were “official acts.” But Trump has no options.
While Trump was still in office, he tried to claim that he had classified the documents as “private,” meaning they could not be treated as sensitive state secrets. Federal prosecutors criticized Trump’s argument that the Presidential Records Act allowed him to designate documents he took from the White House as private.
Legal experts said they expect the defense to revisit disputes over how and when Trump can release classified documents when he leaves the White House.
“The outcome will depend on whether Judge Cannon characterized Trump’s decision to move the documents to Mar-a-Lago at the end of his presidency as a formal act of making the documents private, and whether he viewed that act as a prerequisite. depends on what criminal charges” said Joel Johnson, associate professor at Pepperdine Caruso School of Law. He said that the court’s decision could be useful for Trump.
“I expect his legal team to double down on the argument that he made the documents private before he left office, and that he was acting in an official capacity, which at least provides a presumption of immunity from prosecution. This morning’s Supreme Court ruling,” Johnson said in an email. “Because the criminal charges stem from this official act, Trump’s team will likely argue they should be dismissed under presidential immunity.”
Other experts said they were skeptical of that argument, but Cannon, who spent days hearing defense motions to dismiss the charges on broad grounds, might be inclined to hear it.
“It’s about not acting officially on its face. So you hope that the immunity decision will have no effect.” Jeffrey Cohen is Associate Professor of Law at Boston College. But Cohen, a former assistant U.S. attorney for the district of Massachusetts, “fears that the ambiguity with which the court wrote the immunity ruling will give the defense in the classified documents case a mixed basis for challenging the case.”
He said the defense could point to something that happened during Trump’s presidency “to try to take over all the unofficial actions” and create confusion about whether the non-return of the documents was official.
“I think the court thought it was very clear about informal and formal acts, but what it did is spend a lot of pages muddying the waters between what is an official act and what is not an official act,” Cohen said.
He said he feared Cannon would “confuse these issues.”
“And there should be no confusion about that; these are all informal actions,” Cohen argued. “By not responding to subpoenas, by hiding documents, he acted like a private citizen.”
“He was off duty, so he can’t claim presidential immunity if we’re going to call it that,” said Richard Gregory, a former chief assistant U.S. attorney in Miami, Florida. “Now, the judge will insist on some kind of hearing or prevent some evidence from coming, that’s a possibility.”
Reached for comment, Trump’s campaign responded with a statement from the former president celebrating the verdict in a post on social media platform Truth Social.
“Today’s historic Supreme Court decision should put an end to all Crooked Joe Biden witch hunts against me, including the New York scams – Soros-engineered Manhattan crooks DA, Alvin Bragg, supported the brazen ATTACK by racist New York Attorney General Tish James. Amazing business I built and FAKE Bergdorf’s ‘business,'” Trump wrote. “Proud to be an American!”
Later statement Sharing on the social media platform, Trump said that the decision “completely vindicates” him.
There are other ways Trump’s defense could apply pressure stemming from the decision.
In the same opinion, Thomas suggested that the appointment of a special prosecutor was unconstitutional.
While Thomas’ opinion is not binding and says little about the position of the other justices, it could still be significant, Johnson said. “It not only expresses his reasonable doubts about the constitutionality of the special prosecutor, but also lays out a nine-page argument that Judge Cannon could have used to reach the same conclusion.”
Cannon heard arguments on that question last week.
Still, Johnson said, citing a feature that others have pointed out, “it won’t insulate him from reversing it on appeal.”
“If Judge Cannon chooses to accept his reasoning, I expect it will be overturned by the 11th Circuit Court of Appeals,” said Dave Aronberg, state attorney for Palm Beach County, Florida.
However, one key point remained: the immunity ruling makes it even more unlikely that the trial will take place before November. There is no judgment date and no sign of an upcoming one.
“I have no doubt that other motions will be filed, and Judge Cannon will need plenty of time to work through those motions,” said Justin Levitt, a law professor at Loyola Marymount University. Any delay almost ensures there will be no trial until polling day.
“The main effect of today’s decision on classified documents cases is to reaffirm that it is highly unlikely that they will be heard before November,” Levitt said.