Former President Trump’s legal team is asking a judge to toss his prosecution in his federal election interference case, arguing that it’s a vindictive prosecution that violates his free speech while seeking to distance Trump from the attack on the Capitol.
In a series of late Monday motions filed minutes before a midnight deadline, Trump’s attorneys echo many of his oft-repeated lines from the campaign trial, arguing he was simply raising questions about the 2020 election and shouldn’t be held responsible for the storming of the building.
“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,” his attorneys wrote in a motion to strike “inflammatory allegations” from Trump’s indictment.
Special counsel Jack Smith acknowledged in his four-count indictment that Trump could lawfully challenge his electoral loss, but his office contends that Trump illegally sought to block the transfer of power by relying on fraudulent claims and by illegally conspiring to block the official counting of electoral votes by Congress.
Trump’s motions, including those to drop the case, are fairly common moves by defendants facing criminal prosecution and are routinely rejected. Trump already has one pending motion to dismiss the charges arguing he is immune from prosecution given his status as a former president — a challenge the Justice Department decries as turning limited immunity for sitting presidents on its head.
Still, many of the motions bring weighty constitutional questions to the case, including the limits of Trump’s First Amendment rights.
In that argument, Trump’s legal team rehashes the former president’s baseless claims the election was stolen.
“The fact that the indictment alleges that the speech at issue was supposedly, according to the prosecution, ‘false’ makes no difference,” the defense wrote. “Under the First Amendment, each individual American participating in a free marketplace of ideas — not the federal Government — decides for him or herself what is true and false on great disputed social and political questions.”
Former President Donald Trump speaks in New York City on Wednesday, October 18, 2023, outside the New York Supreme Court room where the civil fraud trial is underway that imperils his real estate empire. (AP Photo/Ted Shaffrey)
The same motion said prosecutors have failed to show Trump intended to deceive the public with such rhetoric.
“President Trump’s opinion on the subject was just that — an opinion formed based on his view of the available information. 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,” they wrote.
“Each official thus had every opportunity to form his or her own conclusions, just like President Trump.”
It’s a detail prosecutors will have to address at trial in order demonstrate Trump’s intent.
In another expected motion to dismiss the case due to selective prosecution, Trump’s team hangs its argument on the appointment of Smith himself, as well as President Biden’s pledge to ensure Trump would not be president again.
His attorneys cast Smith’s selection due to the election ”as part of a flawed effort to insulate Biden and his supporters from scrutiny of their obvious and illegal bias,” and Biden’s campaign pledge as a direct effort to “incapacitate” a political rival.
In another argument, Trump’s team rehashes claims he cannot be prosecuted as he was acquitted by the Senate following an impeachment trial.
Prosecutors have noted, however, that Trump attorneys at the time argued the opposite ahead of the Senate impeachment trial, saying such matters could be handled by the court system.
In a separate legal filing, Trump’s team also hammered back at a motion from the Justice Department asking the judge to force him to formally declare he will use an advice of counsel defense — arguing that a delay in doing so could kick back the case.
“These demands place an unacceptable burden on President Trump to foreshadow a possible formal defense,” they wrote.
Trump is slated to face trial in March in connection with the case.