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 a pending argument by defense attorneys that he is immune from federal prosecution for actions taken within his official role as president.
Special counsel Jack Smith’s team urged a judge 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 set for trial in Washington 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 courts across the country or even by Trump’s own attorney general.
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.
Legal experts have said Trump’s First Amendment claims are unlikely to succeed, particularly given the breadth of steps taken by Trump and his allies that prosecutors say transformed mere speech into action in a failed bid to undo the election.
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 stormed the Capitol and caused a violent clash with police and a delay to the proceedings.
