Trump's attorneys request indefinite pause on proceedings in classified documents case to settle immunity issue

 July 6, 2024

When the Supreme Court issued its ruling on presidential immunity in the 2020 election-related prosecution of former President Donald Trump by Special Counsel Jack Smith, it was understood that Trump would seek to apply that decision to the other criminal cases he faces.

On Friday, Trump and his attorneys did exactly that with a request for a pause on the proceedings in the classified documents case in Florida so that the claimed immunity issue could be fully resolved, the Washington Examiner reported.

That pause would also prove useful to settle the outstanding questions concerning the legality of the special counsel's appointment and funding, which Justice Clarence Thomas had highlighted as important in a concurring opinion.

Presidents have presumptive immunity for "official acts"

The Supreme Court ruled on Monday that all presidents have absolute immunity from prosecution for their core constitutional powers and presumptive immunity for their "official acts" while in office, but have no such protections for "unofficial" or private acts during their presidency.

A key aspect of that ruling authored by Chief Justice John Roberts was a prohibition against prosecutors using non-prosecutable "official acts" as evidence in support of prosecutions for "unofficial acts" by a president, as otherwise a prosecutor would be allowed to "do indirectly what he cannot do directly -- invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge."

The ruling also included a concurrence from Justice Thomas that addressed the need to settle the previously raised issue of Special Counsel Smith's initial appointment and funding and whether they were appropriately authorized by properly established law.

Pause on proceedings necessary to fully resolve the immunity issue

In a 10-page motion filed on Friday, former President Trump's attorneys called upon Judge Aileen Cannon to allow time for further briefing on the immunity issue with a request for "a partial stay of further proceedings -- with the exception of the pending gag-order motion -- until President Trump’s motions based on Presidential immunity and the Appointments and Appropriations Clauses are resolved."

"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," the motion stated. "A partial stay is also appropriate to prevent further exploitation of judicial institutions and resources by Executive Branch personnel in connection with the shameful ongoing lawfare campaign."

The additional briefing was needed to supplement the judge's "necessarily factbound analysis," as per the Supreme Court's ruling, of whether Trump's charged conduct was "official or unofficial," and an appropriate schedule for briefings and replies was suggested during the requested pause on proceedings.

The requested pause on proceedings was also necessary because Chief Justice Roberts wrote in the court's opinion that "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."

Pause will allow for resolution of special counsel appointment and funding issues

The motion from Trump's attorneys also raised the issue of Special Counsel Smith's challenged appointment and hearkened to Justice Thomas' concurrence, in which he wrote, "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' concurrence was further referenced in a separate four-page supplemental motion that said the jurist's non-binding opinion "adds force to the motions relating to the Appointments and Appropriations Clauses" and highlighted the "grave separation-of-powers concerns" that exist if the special counsel's appointment, office, and funding are not properly established by law.

That supplemental also observed that the Supreme Court's ruling "guts the Office’s position that President Trump has 'no immunity' and further
demonstrates the politically-motivated nature of their contention that the motion is 'frivolous,'" not to mention that it "also confirms that the Office cannot rely on 'official acts' evidence in this case."

It is unclear what, if any, impact this request for a pause on proceedings will have given that a trial date has already been indefinitely delayed while Judge Cannon works through the numerous pre-trial motions from both sides plus the complex and time-consuming procedures for handling classified documents in a courtroom setting.

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