Trump classified documents case faces delays amid argument over ‘flawed legal premise’

In a court filing, the special counsel Jack Smith said the judge in Donald Trump’s criminal case over his retention of classified information, was relying on a “fundamentally flawed legal premise” when asking lawyers to consider whether the former president can claim immunity under federal records law.

Smith also said that if the judge, Aileen Cannon, ruled Trump can indeed cite the Presidential Records Act (PRA) in his defence, he would appeal to a higher court, seeking an order for her to apply the law correctly and, implicitly, her removal from the case.

It all raised the possibility of trial being pushed back yet further, beyond the November election in which Trump will be the Republican nominee for president.

Trump faces 40 charges arising from his retention of classified information after leaving the White House and alleged obstruction of attempts to recover such records. He has pleaded not guilty.

Cannon, a Trump appointee who has moved slowly on the case, recently asked lawyers to consider two scenarios in which jurors might be told Trump can, as his lawyers claim, invoke the PRA in his defence.

Smith’s late-Tuesday filing said: “Both scenarios rest on an unstated and fundamentally flawed legal premise – namely, that the PRA, and in particular its distinction between ‘personal’ and ‘presidential’ records, determines whether a former president is ‘authorized’ under the Espionage Act [Section 793] to possess highly classified documents and store them in an un-secure facility, despite contrary rules in executive order 13526, which governs the possession and storage of classified information.

“That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. The PRA’s