Expert: Trump's lawyers making "nonsensical arguments" in effort to evade Jan. 6 charges

Legal expert: Trump team has "one goal" with Jan. 6 defense: "To prevent this case from ever reaching a jury"

By Areeba Shah

Staff Writer

Published October 25, 2023 5:30AM (EDT)

Republican presidential candidate former President Donald Trump delivers remarks during a campaign event on October 23, 2023 in Derry, New Hampshire. (Scott Eisen/Getty Images)
Republican presidential candidate former President Donald Trump delivers remarks during a campaign event on October 23, 2023 in Derry, New Hampshire. (Scott Eisen/Getty Images)

Attorneys for Donald Trump filed several motions on Monday asking Judge Tanya Chutkan, who is overseeing the federal election subversion case against the former president, to throw out several of the most important charges, largely based on the argument that the case was brought by "biased prosecutors” and that it violates Trump's First Amendment rights.

In court submissions filed just before the judge's deadline of midnight on Monday, Trump's legal team asserted that he was the target of political persecution by the Biden administration and that “the First Amendment embraces and encourages” Trump’s actions following the 2020 election.

The ex-president's lawyers characterized the charges against him as legally flawed, arguing that the indictment cannot and should not establish any connection between him and the Jan. 6, 2021, attack on the U.S. Capitol, since Trump has not been charged with inciting that riot, as The Washington Post reported

“Allegations in the indictment relating to these actions, when President Trump has not been charged with responsibility for them, is highly prejudicial and inflammatory because members of the jury may wrongfully impute fault to President Trump for these actions,” the filing said.

Trump’s arguments about the First Amendment are “weak,” since special counsel Jack Smith carefully crafted his charges to avoid criminalizing Trump's speech, said Temidayo Aganga-Williams, a white-collar partner at Selendy Gay Elsberg and former senior investigative counsel for the House Jan. 6 select committee.

“Instead, Trump’s affirmative actions and agreements are the target of the prosecution,” Aganga-Williams told Salon. “Trump was free to think and say what he wanted about the election results. He was not free to take unlawful actions to overturn those valid results.”

Aganga-Williams added that the Trump team's multiple motions to dismiss the federal indictment have "one goal — to prevent this case from ever reaching a jury."

Trump faces four counts in the federal case to be tried under Judge Chutkan in Washington, including conspiring to defraud the United States and to obstruct an official proceeding. The charge of obstructing an official proceeding has previously resulted in convictions against individuals involved in the Jan. 6 Capitol breach. Trump pleaded not guilty in August.

We need your help to stay independent

His attorneys argued in this week's filing that because of the “longstanding tradition of forceful political advocacy” in the country, Trump was not provided with any “fair notice that his advocacy in this instance could be criminalized.”

Such arguments are “nonsensical,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

“Every person, including Trump, has the right to engage in ‘forceful political advocacy,’” he said. “But Trump and his co-conspirators went far beyond advocacy. Trump and his cohorts engaged in a criminal conspiracy to subvert the results of a lawful election by illegal means. To endorse this argument would be to sanction any action taken under the guise of political advocacy, including violence and even political assassination.”

Such motions to dismiss indictments are “routine” and are almost always “rejected,” Gershman explained. The indictment charges Trump with a conspiracy to overturn the election by fraudulent means. 

“The lawyers are making another nonsensical argument that special words need to be used to establish criminal charges,” he said. “There is no such requirement.”

“Every person, including Trump, has the right to engage in ‘forceful political advocacy.’ But Trump and his co-conspirators engaged in a criminal conspiracy to subvert the results of a lawful election by illegal means."

Trump's legal team also argued that the charges against him should be dropped since the indictment fails to provide sufficient evidence to support them, emphasizing that it never alleges Trump employed "deceit or trickery" when allegedly organizing an alternate slate of electors following Joe Biden's electoral victory, according to CNN.

The former president's attorneys also advanced a theme Trump himself has emphasized on numerous occasions: the claim that the prosecution itself appears politically motivated. 

“Three days after President Trump formally announced his candidacy, the Special Counsel was put in place as part of a flawed effort to insulate Biden and his supporters from scrutiny of their obvious and illegal bias,” his attorneys wrote.

Prosecuting Trump for actions he undertook while president, his lawyers claim, demonstrates a selective approach by special counsel Jack Smith, who was appointed by Attorney General Merrick Garland last November.

But such claims of “selective or vindictive prosecution” are occasionally made but almost always rejected, Gershman said. To be sustained, they would have to show "bad-faith motivation," meaning evidence that a person had been accused of a crime for political or otherwise insidious reasons.”

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

As part of their legal argument, Trump’s lawyers contended that “countless millions,” including the former president, believe that “fraud and irregularities pervaded the 2020 Presidential Election,” and that Trump simply “gave voice” to such concerns, demanding that political leaders work to restore integrity to the elections by investigating them.

Trump’s team “consistently argues” that Trump was merely expressing beliefs about election fraud that were widely discussed in the public sphere, Aganga-Williams pointed out, but have also consistently omitted a "critical fact” borne out in enormous amounts of public evidence: “Namely, it was Trump and his allies who were spreading the baseless claims about election fraud in the first place,” he said

Aganga-Williams also predicted that Trump’s claims of "selective prosecution," which attempt to blame President Biden for Trump's prosecution, will also be “a loser” in front of Judge Tanya Chutkan.  

“Other Jan. 6 defendants have unsuccessfully raised similar arguments over the last two years and Trump will not fare any better,” Aganga-Williams said. “Trump’s request for a hearing on this issue is an attempt to create a sideshow.”

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

MORE FROM Areeba Shah

Related Topics ------------------------------------------

Donald Trump Elections Furthering Jack Smith Law Politics Tanya Chutkan