Washington — Lawyers for former President Donald Trump on Monday asked the federal judge overseeing the criminal case involving the 2020 presidential election to dismiss the charges brought against him, arguing in a series of filings that he was, in part, engaging in constitutionally protected speech and his prosecution is politically motivated.
The motions submitted to U.S. District Judge Tanya Chutkan just before the midnight deadline seek to dismiss the indictment returned in August, which accuses the former president of unlawfully attempting to stop the transfer of power after his loss in the 2020 election.
In their series of challenges to the four federal charges he faces, Trump’s defense team wrote that the former president is the target of “selective and vindictive prosecution,” and his impeachment by the House and acquittal by the Senate following the Jan. 6, 2021, assault on the U.S. Capitol bar his prosecution.
Lawyers Todd Blanche, John Lauro and Gregory Singer also asked the court to strike allegations in the indictment related to actions at the Capitol on Jan. 6.
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“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,” they wrote.
Trump has pleaded not guilty to the four charges brought against him by special counsel Jack Smith. The trial in the case remains scheduled to begin March 4, 2024. Chutkan said last week she has no intention of moving the trial date, despite ongoing arguments from the former president’s team to do so.
In their filing challenging the indictment on constitutional grounds, the former president’s defense team argued that Trump was engaging in core political speech and advocacy that is protected by the First Amendment.
“Under the First Amendment, the prosecution cannot criminalize claims that the 2020 Presidential election was stolen; and it cannot, by prosecution, seek to impose its view on a disputed political question like the integrity of the 2020 Presidential election,” they alleged.
Trump’s lawyers also said that because Congress put the former president on trial when it held impeachment proceedings in the waning days of his presidency and after he left office, he cannot be retried by the government.
“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,” they wrote.
The claims that impeachment was the proper remedy for alleged crimes committed in office run counter to the argument pushed by some in Congress in the wake of the Jan. 6 assault, who said Trump could be held accountable through the courts.
“Impeachment was never meant to be the final forum for American justice,” Republican leader Mitch McConnell said in remarks on the Senate floor after voting to acquit Trump.
In their challenges, Trump’s lawyers claim he is being prosecuted for conduct — disputing the outcome of a presidential election — that “scores of people” have been involved with across U.S. history.
“The indictment charges President Trump with crimes arising from his political advocacy on matters of public concern made in the middle of a disputed presidential campaign and election,” they wrote. “President Trump’s actions were inspired by and fully consistent with examples from many similar contested election disputes in our nation’s history.”
Trump’s defense team claimed that in filing the criminal charges, the prosecution engaged in a selective and vindictive prosecution. They also alleged that the charges were pursued by “biased” prosecutors and are the result of a statement from President Biden that Trump would not win the White House in 2024.
In his remarks on Nov. 9, days before Trump announced his bid for the White House, Mr. Biden told reporters that “I’m making sure he, under legitimate efforts of our Constitution, does not become the next president again.”
Trump’s team, though, argued that “Joe Biden pressured DOJ to pursue the nakedly political indictment in this case months before the FBI had even opened an investigation.”
Several of the people charged in connection with the Jan. 6 attack on the Capitol have also raised claims of selective prosecution, though unsuccessfully.
The multi-pronged legal argument for the case to be dismissed is unsurprising, as Lauro told Chutkan during an earlier hearing that they planned to submit a large volume of challenges to the criminal case.
“We’re going to be back many, many times arguing the novel issues in this case,” Lauro said in the Aug. 28 proceeding. Chutkan chuckled and responded, “Can’t wait.”
Trump’s lawyers have already claimed in a filing earlier this month that the charges should be tossed out because he has presidential immunity from prosecution for actions performed within the “outer perimeter” of his official duties.
