Trump moves to dismiss classified documents case, claiming immunity and unlawful appointment of special counsel

Washington — In a flurry of late-night court filings, former President Donald Trump's legal team attempted to get the federal indictment related to his alleged mishandling of classified documents dismissed, presenting a Florida judge on Thursday with various motions to toss the case that she must now consider. 

The former president has been 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. Special counsel Jack Smith, appointed in 2022 by Attorney General Merrick Garland to handle two Trump-related investigations, accused Trump of willfully taking sensitive government records with classified markings from the White House to his Mar-a-Lago residence. 

The special counsel also charged Trump and two co-defendants, aide Walt Nauta and resort employee Carlos de Oliveira, with crimes that amounted to accusations of moving boxes of government records to avoid detection and unsuccessfully trying to get security camera footage erased.

Trump, Nauta and de Oliveira have all pleaded not guilty, and in Thursday's filings, the former president's legal team levied much of the same criticism against the probe that Trump has discussed on the campaign trail. 

In four motions to dismiss the indictment submitted to Judge Aileen Cannon, Trump's attorneys took issue with Jack Smith's appointment as special counsel and claimed various legal principles — including the Presidential Records Act and the theory of presidential immunity — shield the former president from criminal prosecution in the case.  

The attorneys wrote in one memo that the case should be dismissed because, as president, Trump had "unreviewable discretion" over classified records and, under the Presidential Records Act, could designate any official government document as a personal record. 

"President Trump was still the President of the United States when, for example, many of the documents at issue were packed (presumably by the GSA), transported, and delivered to Mar-A-Lago," the filing said. 

Trump's team also argued 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. 

Federal investigators recovered more than 300 documents bearing classified markings from Trump's club at Mar-a-Lago after he left the White House, according to prosecutors' 2022 court filings. The documents were allegedly kept in several places at Mar-a-Lago, including a ballroom, a bathroom and a storage room where more than 80 boxes were stacked. 

The former president's legal team on Thursday also employed a theory they have so far unsuccessfully used in an attempt to dismiss the special counsel's 2020 election-related case filed against him in Washington: presidential immunity. 

Trump's lawyers argued that much of the conduct described in the indictment occurred while he was still president, characterizing them as official acts that cannot be criminally charged. Trump "made this decision while he was still in office," they wrote of his movement of documents to Mar-a-Lago, "The alleged decision was an official act, and as such is subject to presidential immunity." 

Many of the legal arguments in the filing mirror Trump's claims in the D.C. case, including his contention that the threat of future prosecution could affect how a sitting president operates as it would "hang like a millstone around every future President's neck, distorting Presidential decision-making." 

The former president presented similar claims to a federal judge and three appeals court judges in the nation's capital. All rejected his assertion of presential immunity, writing that legal and historical precedents do not support the idea that a president can never be charged for conduct that occurred while in office. Trump has asked the Supreme Court to step in and further delay his criminal trial in that case as he pursues other appeals. The justices have yet to rule on his request. 

His legal team also took issue with the special counsel himself, arguing Smith's appointment and funding are "invalid." 

"Neither the Constitution nor Congress have created the office of the 'Special Counsel,'" they wrote, arguing the attorney general did not have the proper authority to name Smith to the job. "The authority he attempts to employ as Special Counsel far exceeds the power exercisable by a non-superior officer, the authority that Congress has not cloaked him with." 

Special counsels are appointed by attorneys general based on guidelines in the Justice Department manual. In recent history, multiple special counsels were named during both the Trump and Biden administrations. Money for their investigations comes from permanent indefinite funding that Trump's attorneys argue is improperly allocated because of how they are appointed. 

In appointing Smith, Garland cited numerous laws and regulations that he and other attorneys general have said confer necessary authority onto the selected prosecutors. 

Attorneys for the former president also urged Cannon to dismiss the case against him because of instances of "vagueness" that they said exists in the laws Trump is accused of violating.

The special counsel's office declined to comment on last night's filings when contacted by CBS News. Based on court records, those responses should be expected by March 7.

Cannon has indicated she might schedule hearings to go over the opposing viewpoints.

Other expected motions from Trump to dismiss the case are likely to be filed under seal, as they could contain sensitive information prosecutors have asked to keep out of public view. Cannon ruled that any such motion would first have to be presented to her before any redactions could be made for public release. 

Trial in the case is currently set for the end of May, and the parties are scheduled to meet next week in Fort Pierce, Florida, to hammer out potential details for future proceedings. In recent weeks, defense attorneys, prosecutors and Trump himself have met with Cannon behind closed doors to discuss the use of classified evidence at trial. Those disputes remain ongoing. 

Attorneys for de Oliveira, Trump's co-defendant and a former maintenance worker at Mar-a-Lago, filed their own motion to dismiss the charges against him. De Oliveira is not charged with any alleged mishandling of classified records. His attorneys argued on Thursday there is no evidence that he knew there was a federal investigation ongoing when he allegedly engaged in obstructive conduct.

"Nowhere does the Superseding Indictment allege that Mr. De Oliveira has ever seen a classified document, or that he was aware of their existence and presence at Mar-a-Lago at any time," his attorneys wrote, "The Superseding Indictment is also devoid of any assertion that Mr. De Oliveira was aware of any government investigation at the time of his alleged actions."

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."