Trump Alleges Prosecutorial Misconduct, Moves to Dismiss Documents Case

Former President Donald Trump arrives for his trial for allegedly covering up hush money payments at Manhattan Criminal Court in New York City on May 21, 2024. Curtis Means-Pool/Getty Images

Former President Donald Trump is alleging prosecutorial misconduct on the part of special counsel Jack Smith and the Biden administration in a motion to dismiss the classified documents case filed on May 21.

Alternatively, defense attorneys say the 15 boxes seized by the FBI during a raid on Mar-a-Lago should be excluded from evidence because of due process violations.

Prosecutors docketed their response the same day, saying this “narrative of bad-faith collusion” defense attorneys allege between the Justice Department, White House, and the National Archives and Records Administration (NARA) was “baseless.”

The filings are part of the latest batch of documents U.S. District Judge Aileen Cannon has ordered to be docketed publicly. Significant litigation in this case had previously been sealed, or filed privately, as the case involves classified information and prosecutors have insisted on following the strict process outlined in the Classified Information Protection Act.

Defense Requests New Hearing

The defense argued that the special counsel obtained the 15 boxes seized from Mar-a-Lago improperly, and that a hearing on alleged violations of the Due Process Clause and Presidential Records Act (PRA) is warranted.

Incidentally, Judge Cannon was the federal judge who initially prohibited the FBI from reviewing classified documents seized in the Mar-a-Lago raid until someone was appointed to oversee an independent review, and was overturned on appeal.

Defense attorneys previously submitted to the court several email exchanges between NARA, White House, and DOJ personnel released from a Freedom of Information Act request, arguing they were evidence of collusion and political motivation in bringing a criminal case against President Trump.

They had also previously argued that under the PRA President Trump had the right to remove documents at will and designate them “personal” and not subject to collection by NARA simply by virtue of retaining them. Judge Cannon previously rejected a motion to dismiss based on this argument but left the door open for this interpretation of the PRA to be included in jury instructions.

“NARA, the Biden Administration, and DOJ ‘collude[d] in bad faith’ to deprive President Trump of his constitutional rights by using civil authorities to collect evidence for use in a criminal prosecution,” defense attorneys argued.

The emails showed NARA personnel, in response to a request from the congressional January 6 Select Committee, try to obtain records from President Trump with great urgency. NARA was also quick to draft a referral letter to the DOJ when the files were not obtained immediately, while keeping an official in the White House updated.

By contrast, “no one—not even the court—believed that recourse to criminal investigative steps or a prosecution was possible to seize records lawfully possessed by President Clinton pursuant to an exercise of Article II authority before he left office,” defense attorneys argued.

Prosecutors Defend Process

Prosecutors argued they have been in full compliance with all applicable policies and laws, and criticized the defense’s motion as a “conspiracy theory.”

They argued that the NARA draft referral letter to the DOJ was not sent in September 2021, and that “consistent with NARA’s statutory duties,” the archive’s general counsel conferred with a civil attorney at the DOJ about the issues in the letter.

This did not show a due process violation but “communication between two government agencies, which is both common and proper,” prosecutors argued.

They argued the White House and NARA officials involved in those communications “were simply carrying out their assigned responsibilities,” and NARA’s requests of President Trump’s team were “neither controversial nor unexpected.”

Instead, the prosecutors allege that “months dragged on” while Trump representatives were slow to respond to requests.

Prosecutors also stated they followed procedures to review the evidence, first receiving only an inventory list from NARA before the DOJ officially sought access to the 15 boxes.

The prosecution also argued that the PRA allows disclosure of presidential records such as those seized from President Trump, under circumstances like a subpoena for a criminal investigation, or when the incumbent president requires them for current business.

The archivist is then required to issue a notice to allow the president to assert privilege, which President Trump’s representative did. Then NARA consulted with White House counsel, prosecutors stated, and President Joe Biden decided to defer to the archivist as to whether to uphold President Trump’s claim of privilege.

Ultimately, NARA had made the decision overriding President Trump’s claim of privilege, as the DOJ’s Office of Legal Counsel advised the archive that there is no precedent for a former president asserting executive privilege over the incumbent president. The parties disagree as to whether this was proper.

Prosecutors also defended their use of a grand jury in Washington, in conjunction with allegations of a violation that was redacted from the public filing.

They argued President Trump did not show that prosecutors “substantially influenced the grand jury’s decision to indict.”

The motion was originally filed under seal in Feb. 22, and the prosecutors responded under seal March 7.