Trump files new challenges to federal election obstruction case in D.C. – The Washington Post
Former president Donald Trump launched a multipronged legal attack late Monday on his federal prosecution for allegedly subverting the results of the 2020 election, saying his actions were protected by the First Amendment as political speech, and arguing that he cannot be tried in criminal court for attempting to block Joe Biden’s victory because he was already impeached by the House but acquitted by the Senate.
In court filings that landed minutes before a midnight deadline, lawyers for Trump claimed he was a victim of political persecution by the Biden administration. They called the charges against Trump legally defective and vague, and said the indictment should not link him to the violence of the Jan. 6, 2021, attack on the U.S. Capitol because he is not charged with inciting that riot.
“Because the Government has not charged President Trump with responsibility for the actions at the Capitol on January 6, 2021, allegations related to these actions are not relevant and are prejudicial and inflammatory. Therefore, the Court should strike these allegations from the Indictment,” wrote defense attorneys Todd Blanche, John Lauro, Emil Bove and Gregory Singer.
“The indictment must be dismissed because it seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment,” they wrote.
Trump is scheduled to face trial in federal court in Washington in March after pleading not guilty to an Aug. 1 indictment accusing him of a criminal conspiracy to remain in power, obstruct Congress’s lawful certification of Biden’s victory and deprive Americans of their civil right to have their votes counted.
The case is one of four felony prosecutions of Trump charged this year, including a state trial in Georgia that involves similar allegations of trying to obstruct the state’s election results; a federal indictment in Florida over Trump’s alleged retention and mishandling of classified documents and obstruction after leaving the White House; and a New York state business fraud prosecution accusing Trump of covering up a hush money payment made during the 2016 election campaign.
While aspects of the former president’s case raise historic and unprecedented legal questions, the motions filed late Monday are fairly typical for criminal defendants trying to challenge the legal sufficiency of the charges against them.
Trump’s claims of selective and defective prosecution have also been raised unsuccessfully over the past two-plus years by defendants charged in connection with the Capitol riot, in which angry Trump supporters — encouraged by Trump to go to the Capitol after a rally near the White House — injured scores of police officers, led to multiple deaths and forced the evacuation of Congress as lawmakers met to formally certify the 2020 election results.
Prosecutors led by special counsel Jack Smith will have the opportunity to respond to Trump’s motions in coming weeks, both in writing and in oral arguments.
Trump’s latest legal filings exceeded 100 pages and substantially completed his pretrial motions to pare back or end his case on legal grounds before going to trial.
Earlier this month, Trump made his central argument for dismissing the case, claiming that his actions while president are “absolutely immune” from criminal prosecution. Prosecutors responded that U.S. District Judge Tanya S. Chutkan should reject that argument because it would put presidents “above the law” and invite lawless measures by presidents to corruptly hold on to power.
Trump has more time to seek permission to issue subpoenas or otherwise seek evidence from third parties or the government, and litigation over a limited amount of classified evidence in the trial is in the early stages. Other fights, over admissible evidence, testimony, jury selection and instructions, would unfold closer to the March 4 trial date.
In Monday night’s motions, Trump argued that Congress’s second failed impeachment effort — in the final days of his presidency, after the Capitol riot — was the proper venue to decide his guilt or innocence regarding his election-related activities. His legal team also maintained that he had acted within the bounds of the presidency when seeking to overturn the 2020 results.
The Constitution states that a president impeached and removed from office may be subsequently charged by “Indictment, Trial, Judgment and Punishment,” language that Trump’s attorneys argued “presupposes that a President who is not convicted may not be subject to criminal prosecution.”
They added, “The Constitution’s plain text, structural principles of separation of powers, our history and tradition, and principles of Double Jeopardy bar the Executive Branch from seeking to re-charge and re-try a President who has already been impeached and acquitted in a trial before the U.S. Senate.”
Prosecutors have previously said that Trump argued the opposite during his impeachment trial — that he could be prosecuted later if the Senate acquitted him, an interpretation that prosecutors have agreed with. Smith’s team has argued that the clause was meant to limit Congress’s power to remove and disqualify presidents from office, not to preclude the prosecution of those who escaped removal.
In a separate filing late Monday, Trump’s legal team argued that even if the allegations laid out in the indictment were true, the government did not sufficiently explain how the former president broke the laws he is accused of violating.
For example, the defense attorneys said that while prosecutors charged Trump with conspiracy to defraud the country, they did not show that his intent was deceitful — an intent that his lawyers said should be necessary to charge him with the crime.
The indictment alleges that Trump propagated a flood of false claims about purported voter fraud in the 2020 election and then used deceit and lies to try to get state, local and federal officials to change the results, resulting in the assault on the Capitol.
“These claims were false, and the Defendant knew that they were false,” the indictment states. “In fact, the Defendant was notified repeatedly that his claims were untrue — often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts — and he deliberately disregarded the truth.”
But the Trump team argued Monday night that the president was not in a position to deceive anyone about whether the election was fraudulent. The lawyers said the case shouldn’t be allowed to go to trial and urged Chutkan to dismiss his indictment on statutory grounds.
“Virtually every American, including the cited public officials, had similar access to much of this same information, including a mountain of publicly reported facts and opinions, which were the subject of wall-to-wall media coverage throughout the post-election period and beyond,” the filing reads.
“To assert that President Trump, as one voice among countless millions, was somehow capable of unilaterally ‘tricking’ or ‘deceiving’ these individuals, who include some of the most informed politicians on the planet, simply by advocating his opinions on this contentious issue, is beyond absurd.”
The charges: Former president Donald Trump pleaded not guilty to charges that he plotted to overturn the 2020 election in the run-up to the Jan. 6, 2021, attack on the U.S. Capitol. Here’s a breakdown of the charges against Trump and what they mean, and things that stand out from the Trump indictment. Read the full text of the 45-page indictment.
The trial: Jury selection in the D.C. criminal trial is set to begin Feb. 9, with the trial set to begin March 4. U.S. District Judge Tanya S. Chutkan has imposed a gag order on Trump’s public statements in advance of the trial.
The case: The special counsel’s office has been investigating whether Trump or those close to him violated the law by interfering with the lawful transfer of power after the 2020 presidential election or with Congress’s confirmation of the results on Jan. 6, 2021. It is one of several ongoing investigations involving Trump.
Can Trump still run for president? While it has never been attempted by a candidate from a major party before, Trump is allowed to run for president while under indictment in four separate cases — or even if he is convicted of a crime. Here’s how Trump’s indictment could affect the 2024 election.