Special counsel Jack Smith’s team filed a lengthy response Monday to former President Donald Trump’s motions to dismiss his federal election interference case on statutory and constitutional grounds, saying the former president “stands alone in American history for his alleged crimes.”
Trump’s lawyers have filed multiple motions to dismiss the Jan. 6 case, including mounting arguments that the charges brought against him were unconstitutionally applied and ran afoul of the charging statutes.
Trump in August pleaded not guilty to charges of undertaking a “criminal scheme” to overturn the results of the 2020 election by enlisting a slate of so-called “fake electors,” using the Justice Department to conduct “sham election crime investigations,” trying to enlist the vice president to “alter the election results,” and promoting false claims of a stolen election as the Jan. 6 riot raged — all in an effort to subvert democracy and remain in power.
The former president has denied all wrongdoing and denounced the charges as “a persecution of a political opponent.”
In its response Monday, the special counsel argues his indictment rightfully charges Trump with “perpetrating an unprecedented campaign of deceit to attack the very functioning of the federal government” and accuses Trump of “attempts to rewrite the indictment” by claiming it “charges him with wholly innocuous, perhaps even admirable conduct.”
Trump “stands alone in American history for his alleged crimes,” the special counsel writes.
“No other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power,” the filing states.
Former President Donald Trump waits to take the witness stand at New York Supreme Court in New York, Nov. 6, 2023.
David Dee Delgado/AP
The special counsel’s team disputes head-on a key argument put forward by Trump’s legal team — that he should not be able to be charged criminally given he was acquitted by the Senate following his impeachment after the Capitol attack.
In its filing, the special counsel describes such an argument as “frivolous” and “meritless,” and goes on to cite in its filing then-Senate Majority Leader Mitch McConnell’s speech explaining his decision to vote for Trump’s acquittal. McConnell said he believed the Senate lacked jurisdiction to convict Trump of inciting a mob and added Trump “is still liable for everything he did while he was in office “as an ordinary citizen,” according to the filing, which adds: “We have a criminal justice system in this country.”
“The defendant’s criminal prosecution thus does not ‘second guess’ the Senate on a question of criminal liability,” Smith’s office said in its filing.
Smith also disputed the argument from Trump’s legal team that his efforts to convince his supporters the election was stolen were not “deceptive” because he himself genuinely believes the 2020 election was fraudulent.
According to Smith, even if Trump “could supply admissible evidence of his own personal belief that the election was ‘rigged’ or ‘stolen,’ it would not license him to deploy fraud and deceit to remedy what he perceived to be a wrong, and it would not provide a defense to the charge.”
In its filing, they also urge U.S. District Judge Tanya Chutkan to reject Trump’s claim that his actions to overturn the election detailed in the indictment amount to “First Amendment-protected” speech, noting that in the indictment itself, they make clear there’s nothing illegal about claiming the election was stolen.
“The First Amendment does not protect fraudulent speech or speech otherwise integral to criminal conduct, particularly crimes that attack the integrity and proper function of government processes,” Smith’s team writes in the filing. “The defendant’s arguments are based on an inaccurate and self-serving characterization of the charges, and his motion should be denied.”
In a separate filing Monday, Smith also indicated that Trump’s statements celebrating the actions of rioters in the years since the Jan. 6 attack will be used against him at trial.
Arguing against an effort by Trump’s legal team to have language struck from his indictment that ties him to the Capitol attack, Smith notes in his filing how Trump has repeatedly “promoted and extolled the events of that day” and “championed” the rioters as “great patriots.”
“The defendant’s decision to repeatedly stand behind Jan. 6 rioters and their cause is relevant to the jury’s determination of whether he intended the actions at the Capitol that day,” Smith’s office said.
Trump’s trial is scheduled to start March 4.
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