Special counsel urges judge to reject Trump's efforts to dismiss documents case

Washington — Special counsel Jack Smith urged a federal judge on Thursday to reject former President Donald Trump's attempts to dismiss the indictment related to his alleged mishandling of classified documents, describing some of Trump's legal arguments as "frivolous" and as attempts merely intended to delay the case. 

Last month, Trump attorneys lodged numerous motions to convince Judge Aileen Cannon to toss the charges, taking issue with Smith's appointment as special counsel and claiming various legal principles — including the Presidential Records Act and the theory of presidential immunity — shielded Trump from criminal prosecution.  

Trump is charged with 40 counts in the Southern District of Florida stemming from allegations that he unlawfully retained national defense information and then worked to impede the federal probe into his handling of the material. He has pleaded not guilty and denied wrongdoing. 

Smith's filings on Thursday urged the judge to deny Trump's arguments and move on with the case. Prosecutors called the argument that Trump is protected by the principle of presidential immunity "wholly without merit" and "without basis in law" and accused Trump's team of solely working to delay the trial. 

The Justice Department argued Trump "lost the authority to possess documents" with classified markings after he left the White House and wrote that all of the conduct alleged in the indictment occurred after he was no longer president. 

The Supreme Court is set to consider, in April, Trump's claim of presidential immunity in Smith's other case against him. That case focuses on Trump's alleged conduct after the 2020 presidential election. But the case, which is based in Washington, D.C., is on hold until the high court rules on the matter. Two lower courts have already denied Trump's arguments. 

Prosecutors asked Cannon to dismiss the immunity claim in Florida as "frivolous." If she were to do so, it would prevent Trump's legal team from filing an interlocutory appeal that would delay the case indefinitely. 

Trump's team also wrote last month that the Presidential Records Act "precludes judicial review" over a president's recordkeeping, contending that the court has no jurisdiction in the matter. In other cases involving "government officials whose last name is not Trump," matters were handled differently, they said, adding Trump had the authority to deem any governmental record as personal in nature. 

Smith's team, however, argued Thursday that the more than 300 documents with classified markings recovered from Trump "are indisputably presidential, not personal." 

"Trump was not authorized to possess classified records at all," prosecutors argued. 

The federal probe into Trump's handling of classified records followed a months-long effort by federal officials to collect missing documents. Investigators ultimately executed a search warrant at his Florida residence and club, Mar-a-Lago, in August of 2022, after the former president was allegedly not fully responsive to a grand jury subpoena. 

The Trump legal team also filed certain motions to dismiss the case under seal because they said they contained information that could have fallen under a protective order. Prosecutors filed their response to those motions — including one that claimed Trump was being politically targeted by the Biden administration — publicly. 

The former president, Smith wrote, "failed to provide any evidence that his indictment was brought solely to retaliate against him for exercising his legal rights, rather than because he flagrantly and repeatedly broke the law." 

On the campaign trail, Trump has argued the Justice Department — whose leadership was appointed by President Joe Biden — was targeting him because of his candidacy, the basis of his "vindictive prosecution" argument.

Prosecutors pushed back Thursday, writing, "That theory finds no support in evidence or logic."

They also rejected Trump's claim that Mr. Biden was treated differently for similar conduct when another special counsel, Robert Hur, determined no criminal charges were warranted after classified records from Biden's tenure as vice president were recovered at his home and office. 

"Trump, unlike Biden, is alleged to have engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings, which provides particularly strong evidence of willfulness and is a paradigmatic aggravating factor that prosecutors routinely rely on when making charging decisions," Smith's team wrote. 

The former president and two co-defendants — his aide Walt Nauta and former Mar-a-Lago property manager Carlos de Oliveria — are accused of working to impede investigators. They all have denied wrongdoing and pleaded not guilty. 

Nauta and de Oliveira also filed motions to dismiss the case against them, which Smith's team opposed in separate court filings on Thursday. 

Last week, Trump and his co-defendants appeared in Judge Cannon's courtroom in part to discuss the upcoming trial schedule. The former president's legal team contended a fair trial would not be possible before the upcoming presidential election, but conceded August or September would be feasible should the judge decide to move forward.

Smith has asked the court to begin trial in July. It is unclear when the judge will make a decision. 

Late Thursday, Cannon set a hearing on the motions to dismiss for next week. 

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• Donald Trump

Robert Legare

Robert Legare is a CBS News multiplatform reporter and producer covering the Justice Department, federal courts and investigations. He was previously an associate producer for the "CBS Evening News with Norah O'Donnell."