Former President Trump is beginning to leverage the Supreme Court’s presidential immunity ruling in his classified documents criminal case.
In court papers filed Friday, Trump asked U.S. District Judge Aileen Cannon to halt most proceedings in the case until she resolves Trump’s immunity defense. His lawyers proposed a written briefing schedule that extends through early September, meaning a ruling wouldn’t come until at least the fall.
“Resolution of these threshold questions is necessary to minimize the adverse consequences to the institution of the Presidency arising from this unconstitutional investigation and prosecution,” Trump’s attorneys wrote in their motion.
The request marks the latest fallout from the Supreme Court’s landmark decision on Monday that carves out at least presumptive criminal immunity for former presidents’ official acts while in office.
Special counsel Jack Smith previously contended he has not charged Trump over any official acts in the documents case, but Smith’s team now must grapple with the Supreme Court’s broad shield, which further specifies that official acts cannot come in as evidence either.
“Questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding,” Chief Justice John Roberts wrote in the majority opinion.
Trump’s team on Friday requested Cannon halt the case except for Smith’s pending request for a gag order.
In their motion, Trump’s lawyers also latched on to conservative Justice Clarence Thomas’s solo concurring opinion in which he questioned whether Smith was lawfully appointed.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding,” Thomas wrote.
Trump has advanced that argument in his classified documents case, and Cannon, a Trump appointee, held a hearing on the issue last month. She allowed three lawyers who filed friend-of-the-court briefs to argue in front of her at the hearing, one of several unusual moves that have sparked scrutiny from Trump critics.
The former president asked Cannon to continue halting the case from moving forward until she also resolves that issue.
The former president faces 40 charges that accuse him of mishandling classified records and attempting to obstruct the government’s retrieval of those records after he left the White House. He pleaded not guilty, and a trial date has not yet been set.
Separately, Trump is newly seeking to toss his recent 34-count conviction in his hush money criminal case following the Supreme Court’s immunity decision, with the judge already delaying the sentencing until September to weigh the issue.
In his two other criminal cases, Trump has not yet cited the high court’s ruling.