Republican presidential candidate former President Donald Trump gestures after speaking at a campaign rally Monday Oct. 23, 2023, in Derry, N.H. (AP Photo/Charles Krupa)
Republican presidential candidate former President Donald Trump gestures after speaking at a campaign rally Monday Oct. 23, 2023, in Derry, N.H. (AP Photo/Charles Krupa)
WASHINGTON (AP) — 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 Monday in the case charging the Republican with plotting to overturn the results of the 2020 election he lost are on top of that he is immune from federal prosecution for actions taken within his official role as president.
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 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 the Biden administration Justice Department and that he was within his First Amendment rights to challenge the outcome of the election and to allege that it had been tainted by fraud — a finding not supported by or even by .
The lawyers claim prosecutors are attempting to criminalize political speech and political advocacy, arguing that First Amendment 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. “Under the First Amendment, 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 Democrat Joe Biden but said his actions went far beyond that, including by illegally conspiring to block the official counting of electoral votes by Congress on Jan. 6, 2021, when rioters who supported him and caused a violent clash with police and a delay to the proceedings.
A spokesman for Smith declined to comment on Tuesday.
The defense lawyers also contend that Trump, for the 2024 Republican presidential nomination, is being prosecuted for vindictive and political reasons, alleging that “Biden’s publicly stated objective is to use the criminal justice system to incapacitate President Trump, his main political rival and the leading candidate in the upcoming election.”
They say the Justice Department last year as a way to “insulate Biden and his supporters from scrutiny of their obvious and illegal bias.”
In addition, Trump's lawyers are asking to strike from the indictment references to on the Capitol because they say prosecutors have not accused the then-president of inciting the riot.
“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.
The indictment, however, does link Trump's statements to the riot, noting how he had repeatedly urged his supporters to come to Washington on Jan. 6, with one post on the social media platform then known as Twitter saying: "Big protest in D.C. on January 6th. Be there, will be wild!”
