Trump's lawyers argue DC fed’l charges unconstitutional, should be tossed

The lawyers argue the indictment violates the First Amendment, due process, and double jeopardy protections in one of four late-night filings Monday.

In a late-night filing Monday, Donald Trump’s lawyers argued that the special counsel’s D.C. federal case against Trump should be dismissed on multiple constitutional grounds.

The motion primarily relies upon an argument that there can be no absolute truth about who won the 2020 election and so, therefore, Trump can’t face criminal charges stemming from his advocacy advancing claims that were made without evidence that the election was stolen.

The motion was one of four filed by Trump’s lawyers as Monday came to a close, a deadline for motions seeking to have the case dismissed.

In the constitutional arguments filing, the lawyers stated from the outset that Trump continues to believe “that fraud and irregularities pervaded the 2020 Presidential Election.”

The lawyers went on to argue — not only despite that but, in part, because of that — that there are three constitutional reasons why U.S. District Judge Tanya Chutkan should dismiss the case brought by Special Counsel Jack Smith.

In Smith’s D.C. case, brought on Aug. 1, Trump faces four counts: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempting to obstruct an official proceeding; and conspiracy against rights, specifically, “the right to vote and to have one’s vote counted.”

What are the constitutional grounds that Trump’s lawyers say require dismissing the case?

First, Trump’s lawyers argued in the Monday filing that the indictment “seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment.” In a subsection titled, “The First Amendment Does Not Permit the Government to Prosecute a Citizen for Claiming That the 2020 Presidential Election Was Stolen,” Trump’s lawyers argued just that:

Further still, they continued: “This is especially true because claims that the 2020 Presidential election was ‘rigged’ or tainted by fraud and irregularity … do not involve ‘easily verifiable facts.’”

As such, they concluded, “Under the First Amendment, the question of whether the 2020 Presidential election was stolen from President Trump must be decided in ‘the free marketplace of ideas,’ not in criminal prosecutions.“

This is a weird section of the brief, because most of it — as shown from some of the basic First Amendment cases cited throughout — is boilerplate discussion of free speech protections. The problem, though, is that the brief doesn’t follow the indictment to its actual charges. I just want to re-post them here to highlight how the special counsel’s office chose the charges carefully to highlight that speech and even advocacy were not being criminalized:

Nonetheless, that claim is actually their strongest argument.

The second argument advanced by Trump’s lawyers is the weakest, and most bizarre. They argued that impeachment — a legislative function — somehow triggers the Double Jeopardy Clause — which addresses criminal law — presumably because we use words like “trial” and “acquitted” in both impeachment and criminal law.

In arguing that the Impeachment Clause itself bars criminal prosecution, they asserted that “the Executive Branch—including the prosecution—lacks authority to second-guess the determination of acquittal made by the United States Senate.”

Under the Double Jeopardy Clause, they then went on to argue, “The Clause prevents the same sovereign from subjecting a defendant to multiple, sequential charges based on the same operative facts or the same course of conduct.“ Therefore, “the prosecution cannot proceed against President Trump for conduct of which he was acquitted by the Senate.”

Finally, for the due process argument, the lawyers asserted that “Trump could not possibly have received fair notice that his conduct was supposedly criminal when he performed it” because he is the first former president to face such charges despite the fact that other elections were disputed.

In addition to the constitutional claims, Trump’s lawyers on Monday night later filed motions to dismiss the case on statutory grounds and as a selective and vindictive prosecution, as well as a motion to strike inflammatory allegations from the indictment.

Trump’s lawyers previously argued that the case should be tossed based on presidential immunity. The government filed its opposition to that motion last week.

The government’s responses to Monday’s filings will be due by Nov. 6, with the reply from Trump’s lawyers due 10 days after the government’s responses are filed.