Former President Donald Trump is hoping to leverage the Supreme Court's recent ruling that he has a presumption of immunity for official acts to not only block the federal election conspiracy case brought by special counsel Jack Smith, but also the classified documents case in South Florida.
But that is doomed to fail, wrote former White House ethics counsel Norm Eisen, former Trump attorney Tim Parlatore and former Senate Judiciary Committee counsel Josh Kolb in a joint article for CNN.
"Trump’s effort to dismiss that case is spurious, potentially self-destructive and should fail," they wrote. "The classified information case, which includes 32 counts of willful retention of national defense information and also alleges false statements and conspiracy to obstruct justice, is arguably the most straightforward of the prosecutions against Trump — and is of the utmost seriousness. While there are some complicated legal and evidentiary issues related to classified information that led Judge Aileen Cannon to postpone the trial in May, the alleged criminal activity is straightforward and this fact is not in dispute: Trump possessed classified documents after he left office."
The fact that the alleged offense occurred outside of office completely shoots down any idea that it could have been an official act of office, they wrote. Nonetheless, "his request to the court will result in delays that will help ensure the Mar-a-Lago prosecution will not go to trial this year."
Read also: Judge Cannon hits Trump with major loss in classified docs case
In particular, Trump's theory rests on the Supreme Court's decision to exclude evidence of official conduct from any trial that seeks to prosecute a president for unofficial acts. However, they wrote, "a closer reading of the decision reveals that the court only ruled on the inadmissibility of 'immune conduct,' or official presidential acts that would be considered unlawful but are shielded from prosecution by immunity. As this applies to none of the stray benign presidential conduct that we have described above and that is included in this indictment, there is nothing to exclude."
If Judge Aileen Cannon, a far-right jurist with a reputation for tilting rulings in favor of Trump, tries to throw out the case on any of these grounds, they wrote, it will just kick the matter to the Supreme Court, and she will be overruled. "Once Cannon gets to the merits, she should not — and likely will not — act in favor of Trump," they concluded.
