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Trump seeks to dismiss Mar-a-Lago classified documents case, citing in part presidential immunity

<i>Justin Sullivan/Getty Images via CNN Newsource</i><br/>Former US President Donald Trump speaks during a Fox News town hall at the Greenville Convention Center on February 20
Justin Sullivan/Getty Images via CNN Newsource
Former US President Donald Trump speaks during a Fox News town hall at the Greenville Convention Center on February 20

By Holmes Lybrand and Hannah Rabinowitz, CNN

(CNN) — In four expansive filings Thursday evening, Donald Trump moved to dismiss the criminal indictment he faces for keeping classified information at his Mar-a-Lago residence, arguing that the charges, as well as the special counsel, lack legitimacy.

The filings put forth an array of arguments that go to the heart of the classified documents case and make clear that the former president’s legal team is still pursuing their clearest legal strategy to date – to delay any eventual trial date.

In moving to toss the case, his attorneys again argued that Trump is protected by presidential immunity, echoing arguments Trump made in the election subversion case against him in Washington, DC, which were roundly rejected by a federal judge as well as a three-judge panel in the DC District Court of Appeals.

Defense attorneys wrote that the indictment covers alleged decisions Trump made as president, which are “subject to presidential immunity” as an official act.

In their ruling earlier this month, the three-judge panel in DC forcefully dismissed the argument that Trump should be immune from prosecution, writing: “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.”

Trump’s attorneys, in one of the filings, called the panel’s conclusion “poorly reasoned.”

“The D.C. Circuit’s analysis is not persuasive for many of the reasons,” his attorneys wrote, “and President Trump is pursuing further review of that erroneous decision including … review in the U.S. Supreme Court if necessary.”

On February 13, Trump asked the Supreme Court to temporarily block the DC Circuit’s ruling on immunity in the January 6 case. The high court has not yet said whether it will hear arguments on the issue of presidential immunity.

Trump also made the audacious claim that special counsel Jack Smith – whose team is prosecuting both federal criminal cases against Trump – was unlawfully appointed and that his actions in keeping the documents were permitted under the Presidential Records Act.

Defense attorneys accused Attorney General Merrick Garland of appointing Smith improperly, writing that the appointments clause of the Constitution does not afford Garland the power to appoint “without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States.”

In appointing Smith, Garland cited a law that grants him the authority to appoint officials to investigate matters “as may be directed by the Attorney General.” Trump’s own Attorney General Bill Barr cited the same statute to appoint then-special counsel John Durham.

Defense attorneys also asserted to the judge presiding over the Florida case, Aileen Cannon, that because Trump was still president when he took the classified documents to Mar-a-Lago, he cannot be criminally charged for keeping them in his possession.

The argument formally puts into the court record what the former president has repeatedly argued on the campaign trail – that he was abiding by the relevant law, the Presidential Records Act, when he took and kept documents in his Florida club.

Trump had “virtually unreviewable Article II executive authority to designate the records as personal” as president, they wrote, adding that “it would demolish the notion of chain of command within the Executive Branch if a [National Archives] employee, including the Archivist, was able to dictate to a President, who embodies that whole branch of the government, how to handle records.”

The Presidential Records Act says the moment a president leaves office, the National Archives and Records Administration gets custody and control of all presidential records from their administration. Personal records are described in the PRA as things like personal notes, materials relating to private political associations or materials relating exclusively to the president’s own election to the White House.

The National Archives issued a rare public rebuke of similar claims last year, writing in an official statement that “the PRA makes the legal status of Presidential records clear and unambiguous, providing that the United States reserves and retains ‘complete ownership, possession, and control of Presidential records.’”

His attorneys also said the charges against Trump in connection with unlawfully retaining classified documents after leaving office were “unconstitutionally vague” because, in part, Trump enjoyed the authority to declassify such information as president.

Trump’s attorneys are expected to make several more filings to dismiss the classified documents case against him, which may need to go through a process of redacting information before being filed publicly.

This story has been updated with additional developments.

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