In three separate motions filed Monday evening, Donald Trump’s lawyers argued that special counsel Jack Smith’s case against the former president related to the Jan. 6 incidents should be dropped.
Smith accused Trump in August of trying to “overturn” the 2020 election with “broadcasting.”[ing] lies” about electoral fraud and “creating[ing] an intense national atmosphere of distrust and anger”. Judge Tanya S. Chutkan, a Democrat appointed by Barack Obama, is overseeing the case and has set a trial date for March 2024; last week, Chutkan issued a broad gag order barring Trump from making public statements about a number of parties, including potential government witnesses and Smith himself. After Trump’s legal team filed a notice of appeal, Chutkan temporarily lifted his own order.
There is no love lost between both parties and the judge. Chutkan reprimanded John Lauro, Trump’s lead attorney in the Jan. 6 case, numerous times during the Oct. 16 hearing in his Washington courtroom to discuss Smith’s proposed gag order . At one point, he admonished Lauro for making a “campaign” speech while at times raising his voice and pointing the finger at him.
More fireworks can be expected in the near future over Trump’s motions to dismiss the case based on three challenges: selective and vindictive prosecution; statutory grounds; and constitutional foundations. (Smith also indicted Trump in June in the Southern District of Florida for mishandling national defense information and obstructing the investigation.)
Citing public comments and news stories that demonstrate Joe Biden’s desire to go after Trump, the selective prosecution movement accused Biden of pressuring his Justice Department officials to open an investigation into the former president. “This prosecution is … driven by an unconstitutional discriminatory purpose: Biden’s publicly stated goal is to use the criminal justice system to incapacitate President Trump, his main political rival and leading candidate in the upcoming election,” he said. write Lauro in the presentation of 11 pages. .
Trump’s criticism of the Biden family, particularly Hunter Biden’s lucrative business deals in China, Russia and Ukraine, is one reason Biden wants to “get back” at his presumptive GOP presidential rival, according to the motion
Lauro further claimed that top DOJ officials, including Attorney General Merrick Garland, initially resisted requests from line prosecutors and others, perhaps Biden himself, to go after Trump. The motion cited a article in the News from New York last year who described Biden, according to two unnamed sources, as increasingly displeased with Garland’s foot-dragging. “The attorney general’s deliberative approach has come to frustrate Democratic allies in the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided in his inner circle that believed that former President Donald J. Trump was a threat to democracy and should be prosecuted,” the reporters wrote in April 2022.
That same month, coincidentally, the FBI was formally opened two investigations to Donald Trump for events related to January 6 and for allegedly stockpiling classified material at Mar-a-Lago.
A week before Garland appointed Smith as special counsel in November 2022 to handle the two cases, Biden declared during a news conference: the next president.” Those comments, Trump’s legal team argued, demonstrate Biden’s intent to put Trump behind bars, resulting in “selective and vindictive prosecution” at the hands of Biden’s own DOJ.
The motion to dismiss on legal grounds challenged the evidence contained in Smith’s 45-page indictment; some referred to it as a “talking” indictment after it was filed, meaning the document acted more as a public relations vehicle than a legal one, detailing Trump’s alleged plan to stay in power after the 2020 election.
Trump faces four charges: conspiracy to defraud the United States; conspiracy to obstruct; obstruction of an official proceeding; and conspiracy against rights. All are vague enough, Lauro explained, to justify dismissing the charges against his client.
As I reported in this column, the DOJ’s enforcement of obstruction of an official proceeding, or 1512(c)(2), in Jan. 6 cases is already in jeopardy. More than 300 January 6 defendants have been accused of obstruction; many pleaded guilty or were convicted at trial, with sentences of up to five years in prison.
But two split decisions by the Washington appeals court, including one issued this week, will almost certainly force the Supreme Court to take up the government’s unprecedented use of the 2002 Enron scandal law dealing with manipulation of evidence, not disruptive political protests. . Lauro emphasized Smith’s intentional misinterpretation of the statute’s language: “The prosecution takes a statute aimed at destroying records in accounting fraud and applies it to contesting the outcome of a presidential election. That stretches the statutory language beyond any plausible mooring to its text.”
The top court may decide as soon as next month to resolve the divided appeals court based on two pending writ petitions filed by defense lawyers on Jan. 6. If the court decides to review the matter, requiring only four judges to agree, Smith’s high-profile offense will be at great risk as he prepares to take the case to trial.
Lauro also challenged Smith’s “conspiracy to defraud the United States” charge on the grounds that the law requires some level of “deceit or deception.” Making statements about voter fraud, organizing an alternate list of voters in swing states and trying to convince the vice president to delay certification of the Electoral College count, Lauro argued, do not constitute fraud.
“Applied as the prosecution suggests, the statute would criminalize an enormous amount of ordinary and routine political activity by millions of American citizens, elevating the government’s assessment of facts over our most sacred right to express our political opinions and make them known to our elected leaders.” Lauro wrote.
And with a bit of shade, Lauro quoted McDonnell v. United Statesthe success appeal of the 2014 fraud conviction of former Virginia Gov. Robert McDonnell to criticize Smith’s “expansive interpretation” of fraud that they “criminalize.”[s] wide swathes of ordinary political interactions.”
Smith, the lead prosecutor in the McDonnell case, was overturned in a unanimous Supreme Court decision in 2016.
Given the shaky legal basis of the four charges, one has to wonder if Smith’s story will repeat itself.
Lauro, understandably, made his most impassioned plea to dismiss the case on the grounds that it violates Trump’s constitutional rights. “[The] The indictment must be dismissed because it seeks to criminalize basic political speech and the defense that lies at the heart of the First Amendment,” Lauro wrote in the third motion.
Lauro rejected the idea that the government can control speech, even speech the government deems false, citing a 2012 Supreme Court ruling that said “claims about widely contested social, political, and historical issues are protected by the First Amendment, regardless of the Government’s decision.” view on the supposed “truth” or “falsehood”.
Much of the evidence for Smith’s impeachment was based on Trump’s public comments about the 2020 election and conversations he had with state officials about the investigation into voting irregularities. Indeed, Smith admitted to the charge that Trump “had the right … to speak publicly about the election and even falsely claim that there had been fraud during the election and that he had won.”
Lauro also noted that national polls indicate that roughly 40 percent of Americans and a large majority of Republicans do not believe the 2020 election was legitimate.
Also, if questioning the outcome of a presidential election is a crime, a lot of people should be in jail for false accusations that Trump conspired with Russia to steal the 2016 election from Hillary Clinton.
“As for public statements and claims that the presidential election was rigged and fraudulent, those claims have been a staple of American political discourse for decades,” Lauro wrote. “Democratic members of Congress have voted to refuse to certify electors after the 2004 and 2016 elections, and there have been major attempts to introduce alternate electors and dispute the outcome of Republican presidential victories in recent decades”.
Which of course goes back to Trump’s claims of selective prosecution. Republicans fully understand the blatant double standards administered by the DOJ. Perpetrators of Trump-Russia collusion win book deals, cable news gigs and lucrative think tank stints; The 2020 election naysayers receive reputation-destroying investigations, public humiliation, and jail time.
These motions are unlikely to get anywhere in Chutkan’s courtroom, except to provide more fodder for his abuse of Team Trump. For now, Trump’s lawyers should be fine-tuning their arguments for the inevitable Supreme Court showdown.
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