Minutes ahead of a midnight deadline, Donald Trump’s attorneys made four separate filings in the D.C. District Court of Judge Tanya Chutkan. Each of these represents a separate request to dismiss the indictment Trump is facing for conspiring to overturn the outcome of the 2020 election.
The first motion seeks to dismiss the case on the basis that Trump really believes that he won the 2020 election, making everything he did protected by the First Amendment.
The second motion seeks dismissal on the grounds that special counsel Jack Smith and his team did an insufficient job of explaining how Trump violated statues cited in the indictment.
The third motion asks that Chutkan remove all language related to events on Jan. 6, arguing that since Trump isn’t charged with inciting these actions directly, their inclusion in the indictment is “inflammatory.”
The fourth motion once again seeks a dismissal of the entire case, arguing that Smith engaged in “selective and vindictive prosecution” under pressure from President Joe Biden.
Such requests for dismissal are routine in criminal cases. They are also routinely rejected.
As The Washington Post points out, Trump’s case does raise both historic and unprecedented legal questions. Some of these issues are almost certain to land before the Supreme Court should Trump be convicted. However, some of the motions filed on Monday night are really more run-of-the-mill despite being decorated with the usual level of Trump umbrage and chest-beating.
The first motion comes down to drawing a line, as special counsel Jack Smith did in the indictment, between Trump’s ability to make claims about the 2020 election or seek a solution in the courts, and taking actions designed to overturn the election results. According to Trump’s team, that line doesn’t exist and everything Trump did was covered by the First Amendment.
The New York Times calls this 31-page motion “some of the most substantial arguments” made by Trump’s team and describes it as a “rewrite [of] the underlying narrative” behind Smith’s case. In that rewrite, everything Trump did—including attempts to persuade state lawmakers to overturn the results of elections in their states, schemes to install slates of false electors, and pressure placed on Mike Pence to ignore electoral votes—was just Trump expressing himself in “the free marketplace of ideas.” The motion also includes a claim that there was “abundant public evidence” of fraud in the election, without providing any substance to support that claim.
This motion isn’t just Trump’s attempt to get the case dismissed before it ever goes to trial, it can be expected to form the heart of his defense when the case does land in front of a jury. Trump will claim that since he believed he had actually won, anything he said—and any action he took—was a protected expression of that belief. This motion is the best preview of their case.
The second motion is more of a stock-standard filing used in many indictments; basically, it’s a claim that prosecutors didn’t do an adequate job in preparing their filing. The weakness of this is underlined by how Trump’s attorneys spend time in the motion attacking not the indictment, but the underlying statutes, such as arguing that the law doesn’t clearly define what it means to “defraud the United States.” Such motions are very unlikely to lead to dismissal.
As the Associated Press reports, the third motion from Trump’s team concerns the portions of the indictment that describe the violence of the mob assaulting the U.S. Capitol on Jan. 6, 2021. Trump’s attorneys argue that because he’s not being directly charged with inciting these events, that language doesn’t belong in the indictment. Winning on this point might give Trump something to brag about, even if it didn't materially affect the charges against Trump. However, it might shift the strength of the government’s case or limit potential penalties, so the results of this motion are still worth watching.
The claim of selective enforcement raised in the fourth motion is another common motion and one that has been attempted by many Jan. 6 defendants over the past two years. Those claims have not been successful, in large part because prosecutors do tend to be a bit selective when it comes to going after people who are obviously guilty.
Much of the reference of the fourth motion cites media appearances and past statements designed to show that prosecutors were biased against Trump. It also makes claims such as “Joe Biden pressured the DOJ to pursue the naked political indictment in this case” as well as insisting that Biden wants this prosecution to prevent Trump from running in 2024. Some of the evidence cited in this motion includes Trump’s own social media statements.
Trump may well have raised this objection only because it does mirror the failed attempts by Jan. 6 defendants, drawing another connection for his followers. Whatever his reasons, this document stands out as more of a rant than a legal motion. This motion is more about creating a narrative than seriously expecting a dismissal.
All of these motions seem designed to do the thing that Trump does regularly in legal proceedings: generate delay. Some, like the fourth, are likely to require no more time than it takes Chutkan to read them and pen a dismissal. But the first one is particularly interesting because it seems very much like a step-by-step walkthrough of the points Trump’s legal team will raise when all this is happening in front of a jury.
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