(CN) — Federal prosecutors told the judge overseeing Donald Trump’s classified documents case that her delay making a decision on a key motion was jeopardizing their case.
Special counsel Jack Smith asked District Court Judge Aileen M. Cannon, in a 24-page response filed Tuesday night, to swiftly reject arguments that Trump is immune from prosecution under the Espionage Act because the classified materials he retained were personal, not presidential, records.
Smith’s filing comes nearly two weeks after a hearing on the issue and more than a month after the former president’s defense attorneys first raised the novel argument.
Trump kept more than 100 documents at his Mar-a-Lago resort in Palm Beach, Florida, that prosecutors say had classified markings, but he claims he had the right to do so under the 1978 Presidential Records Act.
Trump argues he enjoyed sole authority as president to designate materials in his possession as either “presidential” or “personal.” Presidential records needed to be returned to the National Archives and Records Administration, but personal records were his to keep.
Cannon, a Trump appointee, appeared skeptical of the immunity claim during a Feb. 14 hearing in Fort Pierce, Florida, but has since ordered the attorneys to file proposed jury instructions that incorporate the defense’s arguments — presumably to help her decide the issue.
Smith told the judge Tuesday night such biased instructions would “distort the trial.”
The Presidential Records Act, which was enacted after the Watergate scandal to increase transparency in presidential decision-making, has no role in the case, he argued. The act does not address whether it is lawful for a former president to possess classified information, much less in an unsecured facility like Mar-a-Lago, and ignores other laws intended to safeguard secret materials.
Trump has also never claimed he designated the records as personal, Smith said.
The judge needs to make a decision on the immunity question — not leave it to the jury, Smith said.
“Whatever the court decides, it must resolve these crucial threshold legal questions promptly,” he said. “The failure to do so would improperly jeopardize the government’s right to a fair trial and deprive it of its right to seek appellate review.”
Tuesday’s filing reflected increasing frustration in the special counsel’s office as Smith seeks to prosecute the former president before November’s election. If reelected to the office, Trump would enjoy immunity from prosecution and could seek to pardon himself and other defendants.
Cannon still has not set a date for Trump’s trial, which was originally scheduled for May 20. Other motions remain undecided, too.
David Lat, a longtime legal writer and commentator, has reported that at least two of Cannon’s law clerks quit during the case, which may have hampered the judge’s work. While the office is again fully staffed, three of the four clerks have been in her office for less than six months, Lat wrote.
Trump’s attorneys asked the judge to dismiss the charges in a separate response filed Tuesday night. They argue Trump followed the long-standing practice of former presidents when he retained the classified documents.
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