Trump Moves to Dismiss January 6 Case

Trump's legal team just filed three motions to dismiss Special Counsel Jack Smith's four-count indictment related to the events of January 6 and alleged efforts to "overturn" the 2020 election.

Artwork by Ruben Cueto

In three separate motions filed on Monday evening, Donald Trump’s lawyers argued that Special Counsel Jack Smith’s case against the former president related to the events of January 6 should be dropped.

Smith indicted Trump in August for attempting to “overturn” the 2020 election by “spread[ing] lies” about election fraud and “creat[ing] an intense national atmosphere of mistrust and anger.” Judge Tanya S. Chutkan, a Democrat appointed by Barack Obama, is overseeing the case and set a March 2024 trial date; last week, Chutkan issued a broad gag order prohibiting Trump from making public statements about a number of parties including potential government witnesses and Smith himself. After Trump’s legal team filed a notice of appeal, Chutkan temporarily lifted her own order.

There is no love lost between both sides and the judge. Chutkan scolded John Lauro, Trump’s lead attorney in the January 6 case, numerous times during the October 16 hearing in her Washington courtroom to debate Smith’s proposed gag order. At one point, she admonished Lauro for giving a “campaign” speech while at times raising her voice and pointing her finger at him.

More fireworks can be expected in the near future over Trump’s motions to dismiss the case based on three challenges: selective and vindictive prosecution; statutory grounds; and constitutional grounds. (Smith also indicted Trump in June in the Southern District of Florida for mishandling national defense information and obstructing the investigation.)

“With an Evil Eye and an Unequal Hand”

Citing public remarks and news reports that demonstrate Joe Biden’s desire to go after Trump, the selective prosecution motion accused Biden of pressuring officials at his Department of Justice to open an investigation into the former president. “This prosecution is…driven by an unconstitutional discriminatory purpose: 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,” Lauro wrote in the 11-page filing.

Trump’s criticism of the Biden family—particularly Hunter Biden’s lucrative business arrangements in China, Russia, and Ukraine—is one reason Biden wants to “retaliate” against his presumptive GOP presidential rival, the motion alleged.

Lauro further claimed that top DOJ officials including Attorney General Merrick Garland initially resisted entreaties by line prosecutors and others, perhaps Biden himself, to pursue Trump. The motion cited an article in the New York Times last year that described Biden, according to two unnamed sources, as increasingly displeased with Garland’s foot-dragging. “The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted,” the reporters wrote in April 2022.

That same month, coincidentally, the FBI formally opened two investigations into Donald Trump for events related to January 6 and for allegedly hording classified material at Mar-a-Lago.

A week before Garland appointed Smith as special counsel in November 2022 to handle both cases, Biden declared during a press conference, “I’m making sure he, under legitimate efforts of our Constitution, does not become the next president again.” Those comments, Trump’s legal team argued, prove Biden’s intent to get Trump behind bars, thereby resulting in a “selective and vindictive prosecution” at the hands of Biden’s own DOJ.

“Failure to State an Offense”

The motion to dismiss on statutory grounds challenged the evidence contained in Smith’s 45-page indictment—some referred to it as a “speaking” indictment after it was filed, meaning the document acted more as a public relations vehicle then a legal one—that detailed Trump’s alleged scheme to stay in power after the 2020 election.

Trump faces four counts: conspiracy to defraud the United States; conspiracy to obstruct; obstruction of an official proceeding; and conspiracy against rights. All are sufficiently vague, Lauro explained, to justify dismissing the charges against his client.

As I reported in this column, the DOJ’s application of obstruction of an official proceeding, or 1512(c)(2), in January 6 cases is already in jeopardy. More than 300 January 6 defendants have been charged with obstruction; many pleaded guilty or convicted at trial, resulting in sentences of up to five years in prison. 

But two split decisions by the appellate court in Washington, including one issued just this week, almost certainly will force the Supreme Court to take up the government's unprecedented use of the 2002 post-Enron scandal law that deals with evidence tampering, not disruptive political protests. Lauro emphasized Smith’s intentional misinterpretation of the law’s language: “The indictment takes a statute directed at the destruction of records in accounting fraud and applies it to disputing the outcome of a Presidential election. This stretches the statutory language beyond any plausible mooring to its text.”

The highest court may decide as early as next month to settle the divided appellate court based on two pending cert petitions filed by January 6 defense attorneys. If the court decides to review the matter, and it only requires four justices to agree, Smith’s featured felony will be at great risk just as he prepares to take the case to trial.

Lauro also disputed Smith’s “conspiracy to defraud the United States” charge on the basis the law requires some level of “deceit or trickery.” Making statements about election fraud, organizing an alternative slate of electors in swing states, and attempting to convince the vice president to delay certification of the Electoral College count, Lauro argued, do not represent fraud.

“Applied as the prosecution suggests, the statute would criminalize an enormous amount of ordinary, routine political activity by millions of American citizens, exalting the government’s assessment of facts over our most sacred right to state our political opinions and make them known to our elected leadership,” Lauro wrote.

And in a bit of shade-throwing, Lauro cited McDonnell v United States, the successful appeal of former Virginia Governor Robert McDonnell’s 2014 fraud conviction, to blast Smith’s “expansive interpretation” of fraud that “criminalize[s] broad swaths of ordinary political interactions.”

Smith, the lead prosecutor in the McDonnell case, was overturned in a unanimous decision by the Supreme Court in 2016.

Given the shaky legal ground of all four charges, one must wonder whether Smith’s history will repeat itself.

“The Marketplace of Ideas Determines the Scope of Public Debate”

Lauro, understandably, made his most impassioned plea to dismiss the case based on the grounds it violates Trump’s Constitutional rights. “[The] indictment must be dismissed because it seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment,” Lauro wrote in the third motion.

Lauro rejected the idea that the government can police speech, even speech the government considers untrue, and cited a 2012 Supreme Court ruling that affirmed “claims about widely disputed social, political, and historical questions are protected by the First Amendment, regardless of the Government’s view on supposed ‘truth’ or ‘falsity.’”

Much of the evidence in Smith’s indictment relied on public comments made by Trump about the 2020 election and conversations he had with officials in several states about investigating voting irregularities. In fact, Smith admitted in the indictment that Trump “had a right…to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”

Lauro also noted that national polls indicate roughly 40 percent of Americans and the overwhelming majority of Republicans don’t believe the 2020 election was legitimate.

Further, if questioning the outcome of a presidential election is a crime, lots of people should be in jail over false allegations that Trump conspired with Russia to steal the 2016 election from Hillary Clinton.

“As for public statements and claims that the Presidential election was rigged and fraudulent, such claims have been a staple of American political discourse for decades,” Lauro wrote. “Democratic members of Congress have voted to refuse to certify electors after the elections of 2004 and 2016, and there have been extensive attempts to submit alternate electors and dispute the outcome of Republican Presidential victories in recent decades.”

Which, of course, turns back to Trump’s claims of selective prosecution. Republicans understand full well the egregious double standard administered by the DOJ. Trump-Russia collusion perpetrators earn book deals, cable news gigs, and lucrative stints at think tanks; 2020 election deniers get reputation-destroying investigations, public humiliation, and jail time.

It’s unlikely these motions will go anywhere in Chutkan’s courtroom except to provide more fodder for her surliness toward Team Trump. For now, Trump’s lawyers should just sharpen their arguments for the inevitable showdown at the Supreme Court.