Lawyers for Donald Trump are raising new challenges to the federal election subversion case against him, telling a judge that the indictment should be dismissed because it violates the former president’s free-speech rights and represents a vindictive prosecution.
The motions filed late on Monday in the case charging the Republican with plotting to overturn the results of the 2020 election he lost to Joe Biden are on top of a pending argument by defense attorneys that he is immune from federal prosecution for actions taken within his official role as president.
Special counsel Jack Smith’s team urged a judge last week to reject that argument and is expected to do the same for the latest motions. It is routine for defendants to ask a judge to dismiss the charges against them, but such requests are rarely granted.
In Trump’s case, though, the challenges to the indictment could at a minimum force a delay in a prosecution that is set for trial in Washington next March.
Taken together, the motions cut to the heart of some of Trump’s most oft-repeated public defenses: that he is being prosecuted for political reasons by Biden’s justice department and that he was within his free speech rights to challenge the outcome of the election by alleging that it had been tainted by fraud.
Courts across the country and even Trump’s own attorney general reject his claims of fraud.
Trump’s lawyers claim prosecutors are attempting to criminalize political speech and advocacy, arguing that constitutional protections extend even to statements “made in advocating for government officials to act on one’s views”.
They said the prosecution team “cannot criminalize claims that the 2020 presidential election was stolen” nor “impose its views on a disputed political question” like the election’s integrity.
“The fact that the indictment alleges that the speech at issue was supposedly, according to the prosecution, ‘false’ makes no difference,” the defense wrote. “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.”
Smith’s team conceded at the outset of the four-count indictment that Trump could indeed lawfully challenge his loss to Biden but said his actions went far beyond that, including by illegally conspiring to block the official counting of electoral votes by Congress on January 6, when his supporters staged the deadly Capitol attack and temporarily delayed the proceedings.
A spokesperson for Smith declined to comment on Tuesday.
The defense lawyers also contend that Trump, the early frontrunner for the 2024 Republican presidential nomination, is being prosecuted for vindictive and political reasons, alleging that his Democratic rival “Biden’s publicly stated objective is to use the criminal justice system to incapacitate President Trump”.
Trump’s lawyers say the justice department appointed Smith as special counsel last year as a way to “insulate Biden and his supporters from scrutiny of their obvious and illegal bias”.
Attorneys for Trump are also asking to strike from the indictment references to the attack on the Capitol by Trump’s supporters because they say prosecutors have not accused him of inciting it.
“Allegations in the indictment relating to these actions, when President Trump has not been charged with responsibility for them, is highly prejudicial and inflammatory because members of the jury may wrongfully impute fault to President Trump for these actions,” his attorneys wrote.
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