Here’s What Trump Is Arguing in the DC Election Obstruction Case Against Him

Zoe Tillman
·5 min read
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(Bloomberg) -- Donald Trump rolled out a new, multi-pronged attack on the federal election obstruction case against him in Washington, arguing he’s a victim of “selective prosecution” by the Biden administration, that the indictment violates his free-speech rights, and that the charges in the indictment are legally unsound.

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The former president’s defense team filed a barrage of arguments on Monday night urging US District Judge Tanya Chutkan to toss out the case, building on a sweeping presidential immunity claim that they raised earlier this month.

Monday marked a major deadline. With the March 4 trial just over four months away, Chutkan had rejected Trump’s request to give his team until early December to file these types of broad legal challenges to the indictment — a move that prosecutors argued was an attempt to delay the trial.

Special Counsel John “Jack” Smith’s office already filed its opposition to Trump’s immunity claim and will have two weeks to respond to his latest round of challenges. Rulings denying pretrial motions to dismiss indictments can’t always be appealed right away, but Trump’s lawyers have signaled they’ll at least try to immediately challenge a loss on the immunity issue, and might argue to pause the entire case until that’s fully litigated.

Here’s what Trump is arguing:

Presidential Immunity

Trump is claiming immunity against charges for conduct that fell within the “outer perimeter” of his presidential duties. The US Supreme Court adopted that standard decades ago to protect current and former presidents against civil lawsuits, but hasn’t addressed criminal prosecutions.

Trump’s lawyers argued a robust shield was necessary to empower presidents to make decisions in office without worrying about threats of future charges from political rivals. They also said presidential prosecutions had to be tied to a US Senate conviction following impeachment and that “history and tradition” supported broad immunity.

Prosecutors countered that there was no support for Trump’s position in the US Constitution or in Supreme Court precedents. At a minimum, they said, it should be harder, not easier, for current and former officeholders to claim criminal immunity because prosecutions are meant to protect the interests of the public, not private parties. They also rebuffed Trump’s claim that actions he took after the 2020 election to try to overturn President Joe Biden’s wins in various states were within his official responsibilities.

Selective Prosecution

Trump is arguing that the federal election interference case is a politically-motivated “selective” and “vindictive” prosecution intended to boost Biden’s reelection campaign.

Claims of selective prosecution historically are hard to win. Prosecutors get wide discretion in deciding when to bring charges. Defendants have to show not only that other people weren’t prosecuted for the same conduct, but also that they were singled out for indictment for some discriminatory or unconstitutional reason.

Trump’s lawyers contend that there’s a long history of people contesting election results and not facing charges, and that news reports indicated Biden supported a prosecution. Prosecutors have disputed any political motive and that Biden was involved in the decision to charge.

First Amendment

Trump’s lawyers raised a trio of constitutional challenges to the indictment. They argued foremost that the case represented an effort to “criminalize core political speech and political advocacy” protected under the First Amendment.

Impeachment Acquittal

Trump’s second constitutional challenge contends that because he was acquitted by the US Senate following his impeachment by the US House, he can’t be criminally prosecuted for related offenses. His lawyers argued that the Justice Department couldn’t “second-guess” the legislative branch and that the case violates the principles of separation of powers and double jeopardy.

Due Process

Trump’s third constitutional challenge argues that the case violates his due process rights. His lawyers said people throughout US history have challenged election results and never faced charges. Claiming an election is rigged is “a staple of American political discourse,” they wrote. Trump couldn’t have been on notice that his conduct after the 2020 election was potentially criminal, they said.

Invalid Conspiracy

The other set of challenges tackled the validity of each of the four counts in the indictment. The first count charged Trump with conspiring to defraud the US by interfering with the counting of votes and certification of results. Trump’s lawyers argued that the law at issue, 18 USC 371, requires showing “deceit” or “trickery,” and that applying it to their client’s political advocacy would open the door to “criminalizing vast swaths of the citizenry.”

Obstruction Law

Two counts accuse Trump of corruptly obstructing an official proceeding — Congress’ certification of the 2020 results — and conspiring to commit obstruction. Trump’s lawyers argued that urging other government officials to take certain actions didn’t “obstruct” or “impede” their duties and that prosecutors hadn’t offered evidence Trump acted “corruptly.”

Congress adopted the law at issue, 18 USC 1512(c)(2), in 2002 following the collapse of energy-trading giant Enron Corp. and efforts by the company’s auditor to destroy documents during the government’s investigation. More recently, federal prosecutors have used the offense in hundreds of cases against Trump supporters charged in the Jan. 6, 2021 attack on the US Capitol.

Federal judges in Washington, including Chutkan, have rejected challenges to the obstruction offense in the Jan. 6 cases. A federal appeals court twice has sided with prosecutors arguing for a broader range of conduct that can be covered by the law.

Civil Rights

The final count accuses Trump of conspiring against the right to vote. His lawyers argued that he couldn’t violate that law, 18 USC 241, by exercising his own rights to contest the election and speak about matters of public concern. They also argued that because the offense requires a showing that Trump acted to achieve a “governmental” purpose, it conflicts with prosecutors’ contention that his conduct fell outside his presidential duties, so he isn’t entitled to executive immunity.

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