Lawyers for former President Donald J. Trump fired off a barrage of new attacks on Monday night against the federal charges accusing him of conspiring to overturn the 2020 election, filing nearly 100 pages of court papers seeking to have the case thrown out before it reaches a jury.
In four separate motions to dismiss — or limit the scope of — the case, Mr. Trump’s legal team made an array of arguments on legal and constitutional grounds, some of which strained the boundaries of credulity.
The lawyers claimed, largely citing news articles, that President Biden had pressured the Justice Department to pursue a “nakedly political” selective prosecution of Mr. Trump. They asserted that prosecutors in the office of the special counsel, Jack Smith, had failed to prove any of the three conspiracy counts brought against the former president.
And they argued that under the principle of double jeopardy, Mr. Trump could not be tried on the election interference charges since he had already been acquitted by the Senate on many of the same accusations during his second impeachment.
The lawyers also tried to persuade Judge Tanya S. Chutkan, who is overseeing the case, that the allegations against Mr. Trump, accusing him of wielding lies about election fraud in a vast campaign to pressure others to help him stay in power, were based on examples of “core political speech” and were therefore protected by the First Amendment.
“The First Amendment fully protects opinions and claims on widely disputed political and historical issues,” one of the lawyers, John F. Lauro, wrote, adding, “It confers the same protection on the same statements made in advocating for government officials to act on one’s views.”
Mr. Lauro’s free speech claims, developed in a 31-page brief filed to Judge Chutkan in Federal District Court in Washington, were some of the most substantial arguments he made on Monday night, and they essentially sought to rewrite the underlying narrative of Mr. Smith’s indictment.
According to that indictment, in the months after Mr. Trump lost the election, he used lies about widespread fraud to strong-arm state lawmakers and election officials into handing him a victory. It accused him of creating false slates of electors declaring he had won states he had not and said that he had tried to enlist pliant Justice Department officials into supporting his schemes.
It laid out evidence of how he had pressured his own vice president, Mike Pence, into altering the outcome of the race during the certification of the election at the Capitol on Jan. 6, 2021, and ultimately exploited the violence that erupted that day to further maintain his slipping grip on power.
In Mr. Lauro’s retelling of events, however, none of those moves were criminal. Instead, he argued, they were examples of Mr. Trump expressing opinions about fraud or using speech protected by the First Amendment to convince those around him that they needed to fix what he believed were genuine problems in how the election had been conducted.
In Mr. Lauro’s account, Mr. Trump was not breaking the law when he used false claims of fraud to persuade state lawmakers to declare he had won the race, but was only making arguments in “the free marketplace of ideas.”
In a similar fashion, Mr. Trump’s attempts to pressure Mr. Pence into throwing him the election during the certification proceeding on Jan. 6 should not have been indictable offenses, Mr. Lauro argued. They were simply examples of Mr. Trump “petitioning” government officials “for a redress of grievances,” he asserted.
At times, Mr. Lauro’s free speech arguments echoed Mr. Trump’s own outrageous statements about the election, claiming that “abundant public evidence” existed that the count had been marred by fraud and that Mr. Trump was under no obligation to trust “the word” of “establishment-based government officials” who told him otherwise.
Mr. Lauro’s argument hinged in part on the idea that Mr. Trump was reflecting widespread concern about election fraud, without acknowledging that it was Mr. Trump and his allies who were planting and spreading the baseless claims in the first place.
“Countless millions believe, as President Trump consistently has and currently does, that fraud and irregularities pervaded the 2020 presidential election,” Mr. Lauro wrote. “As the indictment itself alleges, President Trump gave voice to these concerns and demanded that politicians in a position to restore integrity to our elections not just talk about the problem, but investigate and resolve it.”
From the outset of the case, Mr. Smith anticipated Mr. Trump’s attempts to shield himself with the First Amendment and in fact addressed that potential argument on the second page of his indictment.
“The defendant had a right, like every American, 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,” the indictment said.
But it also maintained that Mr. Trump “pursued unlawful means of discounting legitimate votes and subverting the election results.” And in the next two weeks, Mr. Smith’s prosecutors will have a chance to rebut Mr. Trump’s free speech arguments in writing.
Mr. Lauro’s First Amendment arguments — specifically his claims that Mr. Trump was merely voicing his beliefs about a rigged election and was only trying to persuade, not force, officials like Mr. Pence to adopt his point of view — showed up again in some of his other motions to dismiss.
They were repeated, for example, in his request to Judge Chutkan to toss the main fraud charge in the case. That charge — a count of conspiring to defraud the United States — was only valid, Mr. Lauro wrote, if prosecutors could prove that it involved “trickery or deceit.” And Mr. Lauro claimed that they could not.
He also claimed that Mr. Smith’s team had failed to meet the legal requirements needed to charge Mr. Trump with the two other conspiracy counts in the indictment. One of those counts accused Mr. Trump of “corruptly” obstructing the certification of his loss during a joint session of Congress on Jan. 6, and the other charged him with depriving people of the right to have their votes counted.
Mr. Lauro’s motion to dismiss based on claims of a vindictive and selective prosecution was a somewhat uncomfortable mixture of politics and law. It sought to blend a heated — and unproven — argument that Mr. Biden had personally directed the prosecution as a “retaliatory response” against Mr. Trump with a more sober contention that Mr. Smith’s indictment had charged the former president with actions that other public figures had taken over the years without being charged.
At the heart of the selective prosecution claim was Mr. Trump’s involvement in the so-called fake elector scheme — a plan hatched by several lawyers close to the former president to create false slates of electors saying he had won the election in several key swing states that had in fact gone to Mr. Biden.
In at least seven other elections dating back to 1800, Mr. Lauro wrote, politicians had sought to introduce “alternate” slates of electors but were never prosecuted for doing so. Then again, Mr. Trump’s efforts to use the false electors to remain in power were far more extensive than even the most famous historical episode, which took place in Hawaii during the 1960 presidential race.
With the flurry of motions filed late on Monday, Mr. Trump has now put on the table all of his attempts to have the election case dismissed before it goes to trial in March.
Three weeks ago, his lawyers filed their initial motion to dismiss, focusing on an untested argument that Mr. Trump should be “absolutely immune from prosecution” because the election interference charges arose from actions he took while he was president.
Prosecutors under Mr. Smith pushed back quickly and firmly on those claims, arguing that Mr. Trump’s expansive view of presidential immunity had no precedent in the country’s history and that he was “subject to the federal criminal laws like more than 330 million other Americans.”
