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Trump Is Already Using Clarence Thomas’ Opinion to His Legal Advantage

The former president’s lead defense lawyer, Todd Blanche, asked federal Judge Aileen Cannon to pause the classified documents case entirely.

Donald Trump Todd Blanche
Donald Trump’s lawyer Todd Blanche asked Judge Aileen Cannon to give further consideration to Clarence Thomas’ nine-page concurrence to the court’s presidential immunity opinion. Dave Sanders/AP

Donald Trump’s lawyers are already trying to weaponize the Supreme Court’s landmark presidential immunity decision to knock down yet another case against him: this time, the classified documents scandal in South Florida.

As legal experts predicted, the Trump defense team has quickly seized on the “lone wolf” concurrence from Justice Clarence Thomas, which — in an unprompted fashion — called into question whether Justice Department special counsel Jack Smith has the legal authority to even prosecute the former president.

On Friday afternoon, lead defense lawyer Todd Blanche asked federal Judge Aileen Cannon, who is overseeing the case, to pause it entirely.

Blanche said that Monday’s Supreme Court decision has turned the case upside down and requires a time out to “minimize the adverse consequences to the institution of the presidency arising from this unconstitutional investigation and prosecution.” The criminal prosecution of Trump for mishandling top secret government records at Mar-a-Lago is already mired in delays.

The Trump team also seems rattled by news out of The Washington Post that Smith plans to continue prosecuting Trump even if he wins the November presidential election by pursuing cases until Inauguration Day in January 2025.

In court filings, Blanche called Smith’s plans “misguided” and the leak to journalists “extreme and fanatical.” He claimed that, taken altogether, there’s even more reason to scrap the calendar.

“Collectively, these circumstances call for heightened caution while the court addresses threshold issues regarding Smith’s lack of authority to drive this prosecution forward on the dangerous and reckless course he has repeatedly sought to foist upon the court,” he wrote.

Although Trump’s classified documents trial was originally slated to start in the spring and could have begun last month, Cannon, who has repeatedly ruled in Trump’s favor, has entertained long-shot challenges from defense lawyers. She held a full-day hearing in June to consider the largely settled question of whether the Justice Department may tap a special counsel to conduct politically sensitive investigations to create a better sense of independence from a sitting presidential administration. She has yet to render a decision on the matter.

On Friday, Blanche also asked Cannon to give further consideration to Thomas’ nine-page concurrence to the court’s opinion that granted Trump a broad definition of presidential immunity. Earlier this week, legal experts told NOTUS that Thomas’ argument, though unsigned by others on the bench, would give Cannon cover to take a contention seriously.

But Blanche’s letter to the court also shows how Trump’s team is seeing this as an opportunity to welcome any delay. The defense lawyer pointed to “ongoing violations of DOJ policy and practice arising from Jack Smith’s efforts to rush this deeply flawed case” and cited the department’s “unwritten 60-day rule” not to meddle with politics in the run-up to an election.

Former federal prosecutors are adamant that no such rule actually exists. In court, DOJ prosecutors have repeatedly scoffed at Trump’s claim of total immunity from criminal charges for keeping boxes of classified material in his oceanside mansion long after leaving the White House.

However, Blanche now says the Supreme Court decision bolsters his team’s arguments. The decision, he wrote, “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,’” he wrote.

Trump’s lawyers are also seeking to limit the kinds of evidence Smith can use at trial. They’re relying on a curious section of the Supreme Court decision on Monday, which, in trying to stop prosecutors from ever criminally charging a former president for anything done within the official job description.

Blanche said the decision “also confirms that the office cannot rely on ‘official acts’ evidence in this case.”

Although Trump’s lawyers are now citing the so-called DOJ “60-day rule,” the Nov. 5 election is 122 days away — and the only reason Trump hasn’t already faced trial in South Florida is because his relentless attempts to slow down the process of having Cannon review the classified information that can be used at trial have been largely successful. Trump’s defense team’s attempts at delay are only increasing in number.

Jose Pagliery is a reporter at NOTUS.