Trump and his lawyers make two arguments in court to get classified documents case dismissed

Fort Pierce, Florida — Former President Donald Trump and his lawyers are in court trying to convince a federal judge in Florida Thursday to dismiss special counsel Jack Smith's classified documents case against him.

Judge Aileen Cannon is hearing arguments on two motions filed by Trump, one that says the former president is shielded from prosecution by a federal recordkeeping law, and another that claims one of the charges presents numerous open legal questions. 

It's the second hearing in as many weeks when Trump's team and prosecutors in Smith's office are facing each other in Cannon's courtroom. 

The first half of the hearing addressed the Trump motion that argued the statute under which he's been charged is unconstitutionally vague.

One of Judge Cannon's main concerns seemed to be whether this motion is premature, and she pointed out that "declaring a statute unconstitutionally vague is an extraordinary step."

"Why are we having this as applied discussion now given the chance of disputed facts," she asked. She pointed out that the superseding indictment does not take the position that Trump's documents were personal, and Trump is now claiming that he had deemed them personal records before he left office.

Cannon was also fixated on the timeline of when Trump's alleged lawful retention of the documents was complete, asking whether that was on Jan. 20, 2021. She explained that a theory in the indictment is that Trump's possession of the documents was authorized while he was president, but his possession became unauthorized the moment the presidency ended. She asked Trump's attorney, "When does it become unauthorized?

Trump lawyer Emil Bove replied that charges under Statute 793 of the Espionage Act should be dismissed because the government cannot establish his lack of authorization. Trump's very removal of the records constituted an act of designating them to be personal records, he argued.

Trump's lawyers and the prosecutors for the special counsel's office argued over the meaning of "unauthorized" and how it should be applied. Judge Cannon seemed to defend the prosecution's use of dictionary definitions of the term in their motions. She asked Bove, "If I deny your motion, how would you put forward jury instructions on the definition of unauthorized?"

Prosecutor Jay Bratt said that the Presidential Records Act reinforces that what Trump was doing was illegal and referenced the recording of Trump's conversation with a staffer when he admitted that "as president I could have declassified it," implying that he knew that because he was no longer president, he was no longer able to do so.

Bratt said Trump knew it was illegal to take the documents, and he did not have to know the specific law he was violating to be aware that it was illegal. Bratt also noted that existing authorities have express language that says what you can and cannot do.  

In addition, he said it was clear Trump knew it was illegal to handle classified documents because of comments he has made about Hillary Clinton. While she was secretary of state, she used a private email server, and during her presidential campaign, the FBI examined whether classified information was mishandled, improperly stored or transmitted on her personal email server. The bureau found no charges were appropriate.

Smith charged Trump with 32 counts of unlawfully retaining classified government records after he allegedly took documents from the White House during the presidential transition. The former president and two aides are also accused of engaging in a scheme to obstruct investigations. All three have pleaded not guilty and denied wrongdoing. One of the aides, Walt Nauta, is also in court Thursday.

In one of several motions to dismiss filed late last month, Trump argued that the case should be tossed because as president, he had "unreviewable discretion" to make any document personal in nature. His attorneys contend that the Presidential Records Act "preclude[d] judicial review" over his recordkeeping. 

"President Trump was still the President of the United States when, for example, many of the documents at issue were packed (presumably by the GSA), transported, and delivered to Mar-A-Lago," Trump's team argued in its filing. Past precedent should have prevented prosecutors from opening a criminal investigation in the first place, they said, which would also disqualify the obstruction charges he faces. 

That argument is "wrong," the special counsel wrote in a filing of his own, telling Cannon the sensitive government records Trump is accused of illegally retaining "are indisputably presidential, not personal" and therefore belong to the government. 

After he left office, "Trump was not authorized to possess classified records at all (let alone at unsecured locations at Mar-a-Lago, as the Superseding Indictment alleges)," prosecutors wrote. 

"The PRA does not exempt Trump from the criminal law, entitle him to unilaterally declare highly classified presidential records to be personal records, or shield him from criminal investigations—let alone allow him to obstruct a federal investigation with impunity." 

Trump has long claimed that he had a right to hold onto the records because of the  federal government classification authority he held while he was president, but prosecutors alleged the federal government — from archivists to investigators — had undertaken a year-long effort to retrieve the missing documents. 

Trump returned 15 boxes of documents that included papers with classified markings in January 2022. A grand jury later issued a subpoena for records that yielded a handful more, according to investigators. Then the FBI executed a court-authorized search warrant at Trump's Mar-a-Lago resort that uncovered hundreds of sensitive records stored in unsecured locations. 

"The Special Counsel's Office cannot escape the import of the PRA's textual commitments of discretion and authority to President Trump during his first term," Trump's lawyers argued in a response Wednesday. 

The second motion that will be considered Thursday is based on Trump's contention that there are many open legal questions about the law known as the Espionage Act, which he has been accused of violating. Trump's lawyers argue the unsettled legal questions amount to an unconstitutional vagueness.

Smith also rebutted this claim, writing in court papers, "Trump's vagueness argument is meritless. Trump is charged with the unauthorized possession and willful retention of national defense information. The statute's prohibitions are clear."

Trump and his co-defendants in the documents case have asked for hearings on other motions to dismiss filed last month, including on claims of vindictive prosecution and presidential immunity. Smith has opposed all of those motions and the question of presidential immunity. The latter issue will be considered by the Supreme Court next month in a separate case tied to Smith's 2020-election related charges against Trump in Washington, D.C. 

That criminal trial is on hold until the high court issues its ruling. 

Prosecutors say Trump's team is just trying to delay the trial in Florida, and argued the criminal proceedings should begin in July. Judge Cannon held a hearing on the trial schedule on March 1, but she has not yet ruled. The defense team claims a fair trial wouldn't be possible before the 2024 presidential election, but then offered an August or September date, should the judge deem it necessary to move forward with the trial.  

Thursday's hearing comes a day after a county judge in Georgia dismissed three charges against Trump as part of Fulton County District Attorney Fani Willis' 2020 election interference case.  The former president still faces other counts in that case. He has pleaded not guilty to all charges.

Earlier this week, Cannon granted Trump's request for a 10-day extension to file additional paperwork tied to other motions to dismiss the case. 

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• Donald Trump

Robert Legare

Robert Legare is a CBS News multiplatform reporter and producer covering the Justice Department, federal courts and investigations. He was previously an associate producer for the "CBS Evening News with Norah O'Donnell."