Trump’s Offensive

Donald Trump appears outside a court house. Photo: Anadolu Agency. Getty Images

Last night at midnight was the court-imposed deadline for defendant Trump to file motions to dismiss the federal case in D.C. brought by Special Counsel Jack Smith. And just under the wire, he brought four new motions, bringing the total number of such motions to five:

One: A motion, filed earlier this month, to dismiss on grounds the president is “absolutely immune from prosecution.” This motion argues, in an upside down world way, that the coup attempt by Trump was actually part of his presidential duties based on his belief that the election had in fact been stolen from him.

Two. A motion to dismiss based on “Constitutional Grounds.” This argues that Trump had a First Amendment right to say what he did; that any case against him presents a question of “double jeopardy” because he was already acquitted by the Senate after impeachment; and that he did not receive fair notice that his actions were criminal and therefore the case violates his Due Process rights.

Three. A motion to dismiss on “Statutory Grounds.” This one argues that the prosecution has failed to explain how Trump violated the three statutes with which he is charged, other than to allege a broad set of facts and then state the statutory language.

Four. A motion to dismiss for “Selective and Vindictive Prosecution.” This argues that the Biden Administration has been out to get Trump through its appointment of the Special Counsel and cites public statements by Biden to argue that Trump has been unfairly targeted for political reasons.

Five. A motion to strike “Inflammatory Allegation” from the indictment. Trump’s lawyers don’t like the fact that the indictment walks through actions at the Capitol by third parties who, his lawyers claim, are not connected to Trump’s actions.

Okay, deep breath. Let me start by saying that these motions are quite typical of what you normally would see filed on behalf of criminal defendants, and importantly none of these is likely to prevail. They are largely there to set up appeals and cause delay. But even on appeal, they are unlikely to succeed, in my view, and the trial will probably not grind to a halt while they are being decided. Let’s walk through each motion briefly to flesh them out.

Presidential immunity

The motion based on presidential immunity—a benefit that apparently lasts forever!—is the most audacious of the set. It seeks to minimize the criminal nature of Trump’s actions by casting them as things any president might do when faced with what he believed was a stolen election. His lawyers argue,

The indictment is based entirely on alleged actions within the heartland of President Trump’s official duties, or at the very least, within the ‘outer perimeter’ of his official duties.

And further,

President Trump’s alleged Tweets and public statements about fraud in the election and the role of the vice president in the certification process were directly related to his contentions that: (1) the presidential election’s outcome was tainted by fraud and other procedural irregularities, and (2) the U.S. Department of Justice and certain state governments had failed to adequately investigate and prosecute fraud and irregularities in the election.

Criminalizing what Trump did, they claim, would chill future chief executives, who might need to take “bold and unhesitating action” without fear of prosecution. They conclude that “234 years of unbroken historical practice—from 1789 until 2023–provide compelling evidence that the power to indict a former president for his official acts does not exist.” (Emphasis mine.) The only remedy, they argue, is impeachment and removal by the Senate, not criminal prosecution.

Special Counsel Smith has already addressed this eyebrow-raising motion and set of arguments. In a sharp response, the government asserts that there is no such thing as “absolute immunity” for former presidents for criminal conduct that occurred in office. Citing the Federalist Papers and numerous academic writings about the limits of presidential power, the government notes, “The principle that no one is above the law underlies the universal consensus that a president may be subject to criminal prosecution at some point.” The response continues, “But the defendant can identify no support for his broad claim that he is forever entitled to absolute immunity.”

“None of the sources the defendant points to in his motion—the Constitution’s text and structure, history and tradition, or Supreme Court precedent—supports the absolute immunity he asks the Court to create for him,” the government states.

Nor was Trump acting within his presidential duties in the first place when he sought to overturn the election. “The allegations focus principally on the defendant’s actions as a candidate for elective office,” the government states in response. “The defendant acted deceitfully or corruptly to secure a personal benefit to himself as a presidential candidate, not to carry out constitutional obligations.”

In these kinds of policy arguments, it’s critical to imagine what world we would set up were certain sweeping arguments accepted. Were Trump reelected, and the law actually said he could never be prosecuted for conduct done under color of his office, that would declare an open season on the rule of law. That kind of power, without fear of consequence, would quickly lead to abuse. 

It is deeply ironic that this question is likely to go before SCOTUS, where the question of their own colleagues acting with neither legal consequences nor meaningful oversight, is currently top of mind for many of the justices. I highly doubt, given the current climate, that they would be inclined to side with the “unlimited and unchecked power” argument and further discredit the Court as an institution.

Constitutional Challenge

Trump’s second “dispositive” (meaning, it could end the whole case) motion seeks dismissal based on three constitutional grounds: Free Speech, Double Jeopardy, and Due Process. Only the first of these arguments has any real heft, in my view.

His attorneys seek to cast Trump as just one among millions of Americans who sincerely believed the election in 2020 was stolen—never mind that the reason millions believe this is because Trump and his minions were pumping the airwaves and online platforms with claims that they knew were false. His lawyers argue, however, that Trump had an absolute right to press these claims, even if mistaken, especially because they were not “easily verifiable facts.” Criminal prosecution of someone who pushes such claims impinges upon the core principles of the First Amendment, they argue. 

The problem here is that Trump, as Smith very clearly notes on the second page of the indictment, is not being prosecuted for his speech or his beliefs. That speech may have been part of the criminal conspiracy to overturn the election, but it isn’t the gist of it. Rather, Trump took concrete actions—e.g., organizing fake elector slates, pressuring Pence to do unconstitutional things, making threatening calls to Georgia officials and asking them to “find” him votes—and that is why he’s been indicted.

The other two arguments by Trump’s team in the “Constitutional Grounds” motion are an even a bigger stretch. 

First, they claim that Trump’s prior impeachment and Senate acquittal, which was a legislative act, mean that he can’t be tried now in criminal court because that would constitute “double jeopardy”—the principle that you can’t be tried twice for the same crime. But Trump’s liberty was never in jeopardy during the impeachment, meaning it never really “attached” for legal purposes, and his lawyers actually argued during that hearing that Trump could be prosecuted later if the Senate acquitted him. So which is it? He can’t have it both ways now.

Second, they argue that Trump is the first president to face charges despite the fact that prior elections were disputed. That creates, they assert, a “due process” violation because Trump could not have been on notice that his actions were illegal. This of course flies in the face of the actual evidence, which shows that multiple people, including his own Justice Department and his own Vice President, told Trump that his proposed actions were illegal. Plus, it’s always the case that there is someone who comes along and first violates a law on the books. Does the first person get a free pass simply because he’s the very first to mess up, like the first pancake in a batch? It makes zero sense. 

I don’t see any of the above grounds as legally strong enough to prevail, and we haven’t even seen Jack Smith’s team’s response yet. And if these are Trump’s best arguments, it doesn’t feel like he is in a strong legal position heading deeper into the trial.

Statutory Challenge

We can make short shrift of this third motion, and Jack Smith and the judge likely will, too. Trump’s attorneys argue, on “Statutory Grounds,” that the indictment doesn’t adequately explain how Trump violated three different statutes through his alleged actions and those of the as-yet unindicted co-conspirators.

If you recall, the indictment sets out a long set of facts and then incorporates those facts to allege broad conspiracies to violate three different statutes: obstruction of an official proceeding, deprivation of civil rights, and defrauding the United States. This was a “speaking indictment” and is actually far more detailed than most indictments require or give, at least notice-wise. And honestly, anyone reading the indictment can easily identify exactly how the salient facts show that Trump entered into an agreement with others and took overt acts in furtherance of three different conspiracies.

This motion is going nowhere.

Selective Prosecution Challenge

Nor do we need to spend much mental energy here. Trump’s lawyers filed this brief to align with what Trump has been saying, publicly but without evidence, about why he’s being charged. In his world, this is all political and comprises election interference, even though there is an independent Special Counsel who does not report to or communicate with the White House. The facts and charges alleged are strong enough to demonstrate that there are ample grounds for prosecution, and that this is not something “trumped up” just to get him.

As the Washington Post notes, these kinds of motions were filed in other January 6 defendants’ cases, and none of them has prevailed. This one won’t either.

Striking “Inflammatory Allegations”

This fifth motion by Trump’s lawyers, like the one based on selective prosecution, is more of a PR move than a legal one. File it in your mental junk drawer. Trump would love to distinguish his actions from those of third party insurrectionists, many of whom are now convicted felons serving time. His lawyers argue that Trump is not accused of inciting the insurrection, so how can these allegations remain in the case? They must be stricken!

Nonsense. Even though there is no specific charge of incitement, the violence at the Capitol is integral to the charges because of Trump’s corrupt state of mind, particularly as the violence unfolded. Trump sought delay of the electoral count and devised a scheme to do it, but even as that plan fell apart because Mike Pence refused to go along, the end result very nearly was the same as the mob attacked and Trump stood by and did nothing. It’s hard to imagine the judge agreeing to strike these allegations as inflammatory and prejudicial given their high relevance to the case.

In sum, expect most of the heat to be on the first two motions listed in this summary: the question of Presidential Immunity and the Free Speech argument of his motion on Constitutional Grounds. Trump has a huge uphill fight on both of these, but they are the arguments most likely to go up to the High Court for consideration. Even so, I predict that, in the end, SCOTUS is unlikely to look with favor upon them.