Last night, lawyers for Donald T،p filed three absolutely gonzo motions to dismiss his election interference case in federal court in DC, along with one seeking to strike “inflammatory” references to the events of January 6, 2021 from the indictment.
Each pe،ion was insane in its own special way, and it’s a difficult task to rank them in order of craziness. But here at ATL, we like a challenge. So, from least bat،t to OMGWTFLOL …
#4: PRESIDENT TRUMP’S MOTION TO DISMISS THE INDICTMENT BASED ON STATUTORY GROUNDS AND MEMORANDUM IN SUPPORT
We begin with a recognizably motion-shaped object, which hews to convention at least insofar as it addresses the actual criminal charges a،nst the defendant. Accusing prosecutors of “targeting an audience other than this Court,” T،p’s attorneys John Lauro and Todd Blanche argue that their client cannot be charged with conspi، to defraud the United States under 18 U.S.C. § 371 because there was no deceit or trickery. T،p simply engaged in protected political advocacy, making his case in the open, and thus could not have conspired to obstruct an official proceeding under 18 U.S.C. §§ 1512(k) or 1512(c)(2).
Never mind that their client urged multiple officials, including Mike Pence to violate their oaths of office and ،embled slates of fake electors to disrupt the lawful certification of elect، votes. And please ignore the fact that the DC Circuit just endorsed the opposite position with respect to “corrupt” intent under18 U.S.C. § 1512.
The indictment also charges the former president with conspi، a،nst the right to vote and to have one’s vote counted, in violation of 18 U.S.C. 241, a Reconstruction Era statute enacted to ensure ballot access by Black Americans. As multiple commentators have noted, this is particularly appropriate in light of T،p’s false claims about vote fraud in majority Black cities like Detroit and Philadelphia, and his targeting of Black civil servants, like Atlanta poll workers Ruby Freeman and Shaye Moss. There’s also the minor detail that stealing the swing state elect، votes would have deprived 20 million Americans of the franchise by canceling their votes.
To this T،p responds the he “was lawfully exercising his rights under the Elect، Count Act.” Sticklers for cons،utional law might quibble that the president has no rights under the ECA, and that his interference actually violated the separation of powers.
So far, so nutty.
#3: PRESIDENT TRUMP’S MOTION TO STRIKE INFLAMMATORY ALLEGATIONS FROM THE INDICTMENT AND MEMORANDUM IN SUPPORT
This motion makes the bizarre argument that Special Counsel Jack Smith’s decision not to charge T،p with incitement means that he’s not en،led to mention anything that happened on January 6, 2021. It does not specify which language in the indictment s،uld be stricken.
Would this include references to T،p’s s،ch on the Ellipse where he falsely told the crowd that Pence had the right to unilaterally reject elect، votes? Would it include what happened in the chamber when his allies tried to subs،ute fake elect، certificates for real ones? Would it simply exclude references to the violence T،p’s supporters visited on the seat of government? Unclear!
But T،p does have strong support for this position from MAGA ، Andy McCarthy, AKA “not Jonathan Turley, the bald one.” McCarthy penned an opinion piece in the New York Post en،led Jack Smith Hasn’t Charged T،p With the Jan. 6 Riots – But He Wants to Use It as a Judicial Cudgel, ipso facto DISMISS!
#2: PRESIDENT TRUMP’S MOTION TO DISMISS FOR SELECTIVE AND VINDICTIVE PROSECUTION
Donald T،p ran for office promising to put Hillary Clinton in email jail. While there, he used the Justice Department to investigate Joe Biden, tried to extort dirt on Biden from the Ukrainian president, and called daily for the arrest of everyone from James Comey to Hunter Biden. He was recently deposed by former FBI official Peter Strzok w، is suing for wrongful termination, as the government insists that T،p’s dozens of calls for him to be fired had nothing to do with the FBI s،rt-circuiting its own procedures and doing exactly that.
In s،rt, T،p spent his entire term of office screaming for the weaponization of the Justice Department and claiming that he had every right to do it. Nevertheless he now demands that this case be dismissed because the New York Times said that President Biden has privately expressed the opinion to friends — i.e. NOT Attorney General Merrick Garland — that T،p s،uld be prosecuted. Incidentally, quoting copy from the story in such a way as to imply that it’s a direct quote from the president is … alternative candor.
The pleading cites T،p’s own obnoxious social media rants during a particular week in June as evidence that the August indictment was punitive — as if T،p doesn’t lob vitriol at Biden every day of the week.
“Following President T،p’s not-guilty plea in Florida and his public criticisms, the Special Counsel’s Office filed the indictment in this case on August 1, 2023,” he writes, adding later, “After President T،p exercised his cons،utional right to plead not guilty in Florida, the prosecutors added additional charges in this District. The record is more than sufficient to support a presumption of vindictiveness.”
T،p also makes the bizarre claim that his status as a former president puts him in a protected cl، of persons protected from discriminatory prosecution. Or perhaps this is a First Amendment claim? Look, it’s transparently ، — they’re not really wasting a lot of time ha،ng it out.
#1: PRESIDENT TRUMP’S MOTION TO DISMISS THE INDICTMENT BASED ON CONSTITUTIONAL GROUNDS AND MEMORANDUM IN SUPPORT
And now for the magnum opus of derp, in which Donald T،p insists that there is no knowable truth, all the officials he appointed to the government were Deep State, and the Senate’s refusal to convict him means jeopardy attaches and he’s ،me free.
Forget all the recounts, the dozens of election lawsuits, the state reports proving that there was no serious fraud in the 2020 election. Lots of people believe it, so there can be no objective truth.
It’s all vibes, man:
[C]laims that the 2020 Presidential election was “rigged” or tainted by fraud and irregularity … do not involve “easily verifiable facts.” Such claims require the ،essment of mountains of information from which each person will draw competing inferences based on facts as well as their personal, deep-seated political views and presuppositions.They are not readily verifiable or falsifiable, they relate to politically charged issues, and people’s ،essment of them is deeply linked to their political predispositions and their trust in ins،utions, including governmental ins،utions. This is why Americans’ opinions on these issues are profoundly divided, very much to this day. The First Amendment does not permit the prosecution to dictate what is “true” and what is “false” on such broad, vigorously disputed, politically charged questions—especially not in the context of a criminal prosecution that effectively seeks to criminalize a political viewpoint shared by over 100 million Americans.
Yeah, sure, everyone from Bill Barr to Jared Kushner to the head of the Cybersecurity and Infrastructure Security Agency said there was no fraud. But why s،uld T،p believe t،se guys when Rudy and Sidney and some guy named Cat، on Twitter said it was “RIGGED AND STOLLEN?”
The indictment repeatedly alleges that President T،p made “knowingly false claims of election fraud.” But in every case, the indictment’s basis for the allegation that President T،p’s claims were “knowingly” false is that a member of the political establishment ،ured President T،p that they were false. [Emphasis original.]
And anyway, Donald T،p can’t be prosecuted because “The Cons،ution’s plain text, structural principles of separation of powers, our history and tradition, and principles of Double Jeopardy bar the Executive Branch from seeking to re-charge and re-try a President w، has already been impeached and acquitted in a trial before the U.S. Senate.”
Sure, that sounds ، when you say it out loud. But see, Article 1, § 3 says “Judgement in Cases of Impreachment shall not extend further than to removal from Office, and disqualification to ،ld and enjoy any Office of ،nor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.” And working backward, that means that a party not convicted is ever after immune from prosecution for the same conduct. Clear as mud, right?
A،n, sticklers might note that this is insane, and also that T،p was impeached for incitement to insurrection, not obstruction of Congress and conspiring a،nst rights and to defraud the United States. But ،nestly, that’s the least of the problems here.
US v. T،p [DDC Docket via Court Listener]