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With alleged accomplices flipping left and right, it’s been a rough week for Donald Trump. On Tuesday, though, Trump’s attorneys looked to turn that momentum around, filing three additional motions to dismiss the Jack Smith–led federal prosecution of his efforts to overturn the 2020 election.
The legal filings offer a fascinating preview of Trump’s potential defenses in the Washington prosecution brought by the special counsel. Will it work? Almost certainly not. Legal experts say the arguments are almost certain to fail to result in dismissal of the case, and in many ways, Trump’s defenses are outright absurd. Former federal prosecutor and impeachment expert Frank Bowman called the dismissal motions “an embarrassing goulash of mischaracterized facts and inverted logic, not to speak of misapplied legal citations.”
How bad are Trump’s latest motions for dismissal—and thus his possible defenses at trial? At one point, Trump’s attorneys literally argue who’s to say what’s true and what’s not true in regards to Trump’s (untrue) claim that the election was stolen. That claim, remember, underpins the entire case. “Bottom line on all of this stuff is that it’s so bad from a legal perspective that some of it comes close to being sanctionable by the court,” Bowman said.
Here’s a quick look at some of the most ridiculous and grotesque arguments for Trump’s innocence made by his legal team in these latest filings.
This is the argument that takes the cake—and is likely in there almost exclusively for the satisfaction of the client. One of Trump’s motions to dismiss rests on the premise that he’s being persecuted for unpopular—but First Amendment–protected—political speech. That claim rests on the notion that none of the actions he and his alleged co-conspirators took to try to overturn the election went beyond such protected speech, a debatable premise at best.
Here, though, is where Trump’s lawyers truly go off the rails. They state that there’s no way to prove that Trump’s claims about a stolen election were even false, and so therefore all of his actions could have been taken to secure the sanctity of, not warp, the 2020 election.
From the motion (emphasis mine):
Claims about the integrity of the 2020 Presidential election—including claims that the election was “rigged” and/or “stolen,” or that fraud and irregularities tainted the outcome in certain States or across the Nation … constitute … core political speech … that is not readily verifiable or falsifiable. Thus, they lie at the heartland of the First Amendment’s protection, and the federal government may not dictate whether such claims are true or false—nor prosecute the purveyors of the allegedly “false” views.
This is especially true because claims that the 2020 Presidential election was “rigged” or tainted by fraud and irregularity … do not involve “easily verifiable facts.” … Such claims require the assessment 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.
Bowman summed up this legal claim: “There is, apparently, no such thing as reality.”
Trump’s premise here is that because he used the bully pulpit to convince large segments of the country of the lie that he won the 2020 election, which he lost, the position is now debatable and any actions he took to turn that “big lie” into political reality were protected by the First Amendment. The motion states:
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.
Bowman summarized this position as “a testament to the fact that Trump and the right-wing media complex have—astonishingly—managed to convince a segment of the population that the crime Trump committed in plain sight was not really a crime.” He concluded that this idea that there is no such thing as the truth is “not a proposition that the law can admit. At least, I hope not.”
One of Trump’s latest motions to dismiss focuses exclusively on the notion that this is a “selective prosecution” orchestrated by President Joe Biden as a means of taking out a top political rival, i.e., a witch hunt. From the motion:
This prosecution is also 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.
If the case is not dismissed, Trump’s legal team is asking that a hearing be held to subject members of the prosecution to direct examination as to whether or not they are “witch hunters.”
The problem for Trump is that the bar for proving such a political prosecution is … very high.
“Trump will have to establish that 1) others similarly situated could have been prosecuted but were not and 2) that the government’s selection of him for prosecution was motivated by insidious intent. It is an almost-impossible-to-meet standard,” said Norman L. Eisen, a former special counsel to the House Judiciary Committee during Trump’s first impeachment.
To demonstrate Trump’s claim of a witch hunt, the defense points to a pair of Trump’s Truth Social posts, as well as two mainstream news articles reporting that, behind the scenes, Biden was frustrated that Attorney General Merrick Garland took so long to put Trump in the sights of federal prosecutors. But these articles—and the defense—offer no evidence that Biden meddled in the prosecution, or even had any contact with Garland over it. (Biden’s comments that Trump was a threat to democracy and should be prosecuted, which were anonymously sourced, were reportedly made privately to members of his “inner circle.” The New York Times article cited by Trump’s legal team explicitly says, “The president has never communicated his frustrations directly to Mr. Garland.”)
Another comment cited in the motion references Biden as saying, “I’m making sure he, under legitimate efforts of our Constitution, does not become the next President again.” The motion claims that Biden’s statement was in reference to prosecuting Trump, but that claim has been fact-checked by the Associated Press as false.
“The quoted statements seem pretty plainly to refer to beating Trump in the next election,” Bowman said. “There is no evidence Biden has interfered in the DOJ’s decisionmaking.”
I covered a version of this argument after Trump’s legal team first made it in a previous motion to dismiss earlier this month, but Trump’s attorneys make it a primary focus of one of the new motions to dismiss, stating:
The government—through Congress—already put President Trump on trial once, placing him in jeopardy for an alleged criminal offense arising from the same course of conduct alleged in the indictment. Having failed to obtain a conviction, President Trump’s acquittal in the United States Senate must stand, and the prosecution may not seek a retrial in this forum.
As I wrote earlier, this is the opposite of what Trump’s legal team stated when he won that acquittal in the Senate. Then, they claimed the appropriate venue for accountability for Jan. 6 was the criminal justice system and not an impeachment of a former president and private citizen. Here, though, Trump’s team goes a step further, saying that he has already been tried via impeachment and can’t be tried again.
“The double-jeopardy claim is comical,” noted Bowman, who wrote a 478-page comprehensive history of impeachment. “It mischaracterizes the impeachment clauses and rests on the wholly incorrect notion that impeachments are criminal proceedings that trigger double-jeopardy protections.”
This one is a little wonky, but the bottom line is that one of the statutes Trump is charged under—conspiracy to defraud the United States—demands a showing that the criminal action be taken with the purpose of “deceit or trickery.” Trump argues that he had no such purpose and that, even if he had, there’s no way that little old he could have possibly been responsible for convincing anyone of anything during his efforts to strong-arm officials into overturning the election results. As the lawyers write:
To assert that President Trump, as one voice among countless millions, was somehow capable of unilaterally “tricking” or “deceiving” these individuals, who include some of the most informed politicians on the planet, simply by advocating his opinions on this contentious issue, is beyond absurd.
As anyone who might have lived through that period would know, it is not absurd.
Ultimately, the defense goulash rests on the premise that Trump did nothing wrong and is a victim of political persecution, without offering any evidence of either. No serious prosecutor thinks that this will go well for him.
“The evidence that has been unearthed during the past year is simply overwhelming,” said Marty London, the defense attorney who negotiated Spiro Agnew’s plea deal with federal prosecutors when Agnew was vice president. “The rats are abandoning the sinking ship. And the ship will sink, I believe, and the big rat will go down with it.”