(CN) — Donald Trump's lawyers filed a flurry of late-night motions Thursday arguing that a federal court in Florida should dismiss charges accusing the former president of mishandling classified records.
Trump's attorneys are asking U.S. District Court Judge Aileen M. Cannon in four separate motions to dismiss the 40-count indictment accusing him of keeping classified documents at his Mar-a-Lago resort and thwarting efforts by federal authorities to get them back.
The former president has four arguments why the case should be tossed: that his actions were protected under the Presidential Records Act; that the special counsel was unlawfully appointed; that the Espionage Act is unconstitutionally vague; and that he enjoys presidential immunity.
Attorneys for Trump’s employee and co-defendant Carlos De Oliveira filed a separate motion asking for his charges to be dismissed for insufficient evidence.
Thursday’s filings in the U.S. District Court of South Florida represent a new front in the battle to prosecute the former president, who has claimed on social media and at rallies that he is being unfairly targeted by his political opponents. The legal challenges, including an immunity claim already dismissed by a federal appeals court, could tie up the proceedings and delay the May 20 trial.
Trump was indicted last year on charges he took boxes of classified documents from the White House and stored them at his resort in Palm Beach, Florida. Trump and two employees, De Oliveira and Walt Nauta, conspired to hide the records from federal authorities and destroy surveillance footage that captured the crime, prosecutors say.
Trump’s attorneys told the court they expected to file at least 10 motions to dismiss this week, but Cannon, a Trump appointee, granted a brief delay while they determine whether some filings should remain sealed. Attorneys for De Oliveira and Nauta are expected to join some of the motions.
The defense argues in the first motion that the Presidential Records Act granted Trump the authority to designate classified documents as personal records instead of presidential records. The boxes of classified materials were removed from the White House while he was still president, the attorneys reason, and therefore he had the authority to decide whether they should be sent to the National Archives and Records Administration, known as NARA.
Trump’s attorneys said previous presidents made similar decisions when they left office and the Department of Justice deferred to their authority.
In 2009, the conservative nonprofit organization Judicial Watch submitted a request for audio recordings a historian made during President Bill Clinton's time in office. The archives center denied the request, claiming the materials, which Clinton retained for himself, were not presidential records.
The center sued the archives administration for violating the Presidential Records Act. The Department of Justice argued on behalf of the archives that Clinton “presumably” classified the tapes as personal records since he did not provide them to the archives center.
“DOJ and NARA have adopted this position with respect to government officials whose last name is not Trump,” the attorneys write.
Trump’s attorneys attack special counsel Jack Smith in the second motion, accusing the career prosecutor of being an unlawfully appointed “political ally” of Attorney General Merrick Garland.
Trump claims that Garland assigned Smith the investigation without the consent of the Senate, violating the “appointment clause” of the Constitution.
In the third motion, Trump says the language of the Espionage Act is too vague to be enforceable.
Trump faces 32 charges under the 1917 law, which prohibits the “unauthorized possession” of any materials relating to the national defense that could be used to injure the United States or benefit a foreign nation. Willful retention of classified materials is punishable by up to 10 years in prison.
The law has been challenged many times in court, including under the “vagueness doctrine,” a constitutional principle that requires criminal laws to state explicitly what conduct is punishable.
The U.S. Supreme Court ruled in 1941 in Gorin v. United States that the Espionage Act was sufficiently clear to convict a naval intelligence officer for selling classified information to a Soviet spy.
Trump argues the law becomes unconstitutionally vague when applied to a president, however. The meaning of “unauthorized possession” is murky for the commander in chief, who has broad authority to declassify materials or designate them personal records, he claims.
Finally, Trump's last argument is that he enjoys presidential immunity from prosecution because the charges stem from official acts taken while in office.
Trump’s attorneys advanced similar immunity claims in Washington, where he is charged with attempting to undermine the results of the 2020 election. A three-judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit rejected the argument this month in a unanimous decision.
In Thursday’s motion, Trumps attorneys write that the appellate court’s decision was “erroneous.”
“American history abounds with examples of presidents who were accused by political opponents of committing crimes through their official acts — yet none was ever prosecuted, until last year,” they wrote.
De Oliveira is arguing in a new motion that the indictment fails to establish that he knew the boxes he and Nauta moved at Mar-a-Lago contained classified documents. There was also no evidence De Oliveira knew about the subpoena federal authorities issued for their return.
An IT specialist at Mar-a-Lago who turned government witness claims De Oliveira pressured him to delete security footage, which prosecutors assert is evidence of a conspiracy. De Oliveira’s attorneys counter that prosecutors offered no proof that De Oliveira knew the footage was also subject to a subpoena.
The special counsel has not filed responses to the motions.
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