Special counsel pushes back on Trump's 'frivolous' efforts to dismiss his classified documents case

Special counsel Jack Smith on Thursday issued a wave of responses to what he described as "frivolous" and "outlandish" efforts by former President Donald Trump to have his classified documents case dismissed before trial.

Trump has pushed for the federal judge overseeing his case, Aileen Cannon, to throw out the 40 felony charges against him alleging that he unlawfully retained scores of classified documents after leaving the White House and obstructed the government's efforts to retrieve them.

In a flurry of previously filed motions Trump's attorneys had put forward various arguments to dismiss the case -- including that Trump was entitled to possess the documents under the Presidential Records Act, that he should be immune from prosecution for removing the documents while still technically in office, that he is being selectively prosecuted in comparison with others who have not faced charges for similar conduct, and that the charges against him are unconstitutionally vague.

In more than 100 pages of arguments filed Thursday, Smith's office sought to dismantle each of those arguments while accusing Trump's team of engaging in delay tactics that have successfully served to stymie Trump's federal election interference prosecution in Washington, D.C.

In their request to Judge Cannon that she reject Trump's arguments that he should be immune from prosecution, they specifically asked her to certify such a claim as "frivolous." Doing so would prevent Trump's team from getting the documents case effectively paused while they engage in a lengthy appeals process.

"Every criminal charge in the Superseding Indictment is based upon conduct in which Trump engaged after he left office," they wrote. "Even if a former President could claim some immunity from criminal prosecution for official acts -- and he cannot -- Trump could not benefit from any such immunity in this case. Trump's immunity claim here is so wholly without merit that it is difficult to understand it except as part of a strategic effort for delay."

Smith's office also pointed to recent statements by Trump which they argued is "additional evidence" of unlawfully retaining classified materials after leaving office. They flagged a social media post by Trump saying he "openly and transparently" took the documents and was "RIGHT" to do so. They also raised a recent interview where Trump told Fox host Sean Hannity that he decided to declassify the documents "by thinking about them."

Smith, in the filings, also went into detail regarding the differences between Trump's alleged conduct and the actions laid out in special counsel Robert Hur's report on President Joe Biden's handling of classified documents.

"First, 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," Smith's office writes. "Second, the evidence concerning the two men's intent -- whether they knowingly possessed and willfully retained such documents -- is starkly different, as reflected in the Hur Report's conclusion that "the evidence falls short of establishing Mr. Biden's willful retention of the classified Afghanistan documents beyond a reasonable doubt.""

The filings also note the risks presented by Trump storing classified documents at his Mar-a-Lago Club versus the locations associated with President Biden where classified documents were recovered.

"Whatever risks are posed by storing documents in a private garage" are dwarfed by the risks of storing documents at "an active social club" with "hundreds of members" and "more than 150 full-time, part-time, and temporary employees," which, between January 2021 and August 2022, "hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests," Smith's team wrote.

Their filing added, "Trump may dispute the Hur Report's conclusions, but he should not be allowed to misrepresent them. The clear differential in the strength of the evidence on the crucial element of intent precludes Trump from showing that the two men are similarly situated."

Smith's office further addressed other instances involving high-profile figures accused of improperly possessing classified materials, including Hillary Clinton, James Comey and David Petraeus -- each time pointing out that Trump's alleged acts included unique and allegedly egregious efforts at obstruction that were never alleged in those other cases.

"While each of them, to varying degrees, bears a slight resemblance to this case, insofar as they involved the mishandling of classified documents, none is alleged to have willfully retained a vast trove of highly sensitive, confidential materials and repeatedly sought to thwart their lawful return and engaged in a multifaceted scheme of deception and obstruction -- a scheme that included not only Trump's own repeated efforts to stymie the investigation, but his recruitment and direction of his subordinates to join in the conspiracy," they wrote. "There is no one who is similarly situated."

In a separate filing addressing Trump's arguments that he properly possessed the documents after leaving the White House by designating them as "personal records," Smith pointed to the potential dangers if such a claim was validated.

"On Trump's ... reading, a departing President could unilaterally convert classified government records -- containing the Nation's most closely guarded military, diplomatic, and national security secrets -- into his private possessions, leaving the government with no judicial recourse to recover its own property and protect the Nation from the risk that the former President may disclose these secrets to a foreign adversary, post them on the internet, or sell them to the highest bidder," Smith's filing said.

"Even Trump shrinks from that conclusion; instead, he argues (inconsistently and incorrectly) that the PRA's civil recovery mechanism is the exclusive means to address a former President's unauthorized possession of presidential records," the filing said.