Trump unleashes mini-Kraken; seeks dismissal of Jack Smith's entire Jan. 6 case

Team Trump looks to scuttle Jack Smith's entire D.C. indictment with sweeping dismissal motions

By Gabriella Ferrigine

Staff Writer

Published October 24, 2023 12:35PM (EDT)

Former US President and 2024 Republican presidential hopeful Donald Trump speaks during a campaign rally at the New England Sports Center in Derry, New Hampshire, October 23, 2023. (JOSEPH PREZIOSO/AFP via Getty Images)
Former US President and 2024 Republican presidential hopeful Donald Trump speaks during a campaign rally at the New England Sports Center in Derry, New Hampshire, October 23, 2023. (JOSEPH PREZIOSO/AFP via Getty Images)

Donald Trump is seeking to have the election subversion charges against him dismissed from the indictment filed against him by special counsel Jack Smith in Washington. In a series of late-night dismissal motions, the former president's lawyers asserted that Smith's case "does not explain" how Trump committed the alleged crimes enumerated in the indictment. Trump has been accused of conspiring to obstruct the certification of the 2020 election, conspiring to deprive Americans of a fair election process and conspiring to defraud government officials administering the election, actions which Smith and his team of prosecutors argue subsequently led to the Capitol insurrection of Jan. 6, 2021.

In these new court filings, Trump's lawyers contend that the case criminalizes Trump's "political speech and advocacy," thereby violating his First Amendment rights. The motions also argue that Trump has been politically targeted by the Biden administration and that the connection between the indictment and the Capitol riots is not tenable because Trump has not charged with inciting the attacks, as the Washington Post notes.

“Because the Government has not charged President Trump with responsibility for the actions at the Capitol on January 6, 2021, allegations related to these actions are not relevant and are prejudicial and inflammatory. Therefore, the Court should strike these allegations from the Indictment,” wrote Trump attorneys Todd Blanche, John Lauro, Emil Bove and Gregory Singer.

“The indictment must be dismissed because it seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment,” they added.

Trump's new legal arguments rest on the "claim that criminalizing his post-election behavior would similarly criminalize ordinary political advocacy like lobbying or protest," writes Politico's Kyle Cheney. The former president's lawyers "cited a newly released opinion by the D.C. Circuit Court of Appeals to contend that Trump could not be accused of 'corruptly' attempting to interfere with Congress’ Electoral College proceedings on Jan. 6, 2021" if Trump's efforts were construed as a legitimate form of "political advocacy."  

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Trump's defense team "literally wants the court to order Jan 6 references be stricken from the indictment," tweeted CBS congressional correspondent Scott MacFarlane, quoting the defense argument that because Jan. 6 is "a high-profile issue on which the public has high awareness and strong opinions," including any reference to that event would be "prejudicial and inflammatory." 

Smith's indictment charges that Trump was the leading force in concocting falsehoods about widespread vote fraud in the 2020 presidential election. In a separate Monday filing, Trump's attorneys respond by describing the former president as "one voice among countless millions," whose opinions cannot be held responsible for deceiving millions of others about the integrity of the election.

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“Virtually every American, including the cited public officials, had similar access to much of this same information, including a mountain of publicly reported facts and opinions, which were the subject of wall-to-wall media coverage throughout the post-election period and beyond,” the filing states.

“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.”

Trump's federal trial in Washington, overseen by U.S. District Court Judge Tanya Chutkan, is scheduled to begin on March 4, 2024, as the first of his four felony cases to go to trial.  

By Gabriella Ferrigine

Gabriella Ferrigine is a staff writer at Salon. Originally from the Jersey Shore, she moved to New York City in 2016 to attend Columbia University, where she received her B.A. in English and M.A. in American Studies. Formerly a staff writer at NowThis News, she has an M.A. in Magazine Journalism from NYU and was previously a news fellow at Salon.

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Brief Donald Trump Elections Indictment Jack Smith Jan. 6 Law Maga Tanya Chutkan Todd Blanche