“Defendant stands alone in American history": Smith filing torches Trump claim, signals new evidence

Prosecutors say Trump trying to "rewrite the indictment" to claim he was charged over "admirable conduct"

By Gabriella Ferrigine

Staff Writer

Published November 7, 2023 10:35AM (EST)

Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)
Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)

Special counsel Jack Smith and his team of prosecutors on Monday in a lengthy filing spelled out exactly why they feel former President Donald Trump should bear the full weight of justice in his Washington, D.C. election subversion case. Smith's indictment charges that Trump spearheaded efforts to orchestrate falsehoods about systemic voter fraud in the 2020 presidential election. 

“The defendant attempts to rewrite the indictment, claiming that it charges him with wholly innocuous, perhaps even admirable conduct — sharing his opinions about election fraud and seeking election integrity,” wrote assistant special counsel James Pearce in the filing, “when in fact it clearly describes the defendant’s fraudulent use of knowingly false statements as weapons in furtherance of his criminal plans.”

“[T]he defendant stands alone in American history for his alleged crimes,” Pearce wrote. “No other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power.”

Politico reported that Smith has also signaled that he plans to introduce new and potentially damning evidence at Trump's trial, which will be overseen by U.S. District Court Judge Tanya Chutkan and scheduled to begin on March 4, 2024. 

Smith's latest filing came in response to Trump's own efforts to have the entire Jan. 6 case dismissed. In a series of dismissal motions, Trump and his legal team contended that the case violated Trump's First Amendment rights by criminalizing his "political speech and advocacy," claiming that Smith's indictment "does not explain" how the ex-president committed the alleged crimes he has been charged with.

Prosecutors in their rebuttal countered: “The First Amendment does not protect fraudulent speech or speech otherwise integral to criminal conduct, particularly crimes that attack the integrity and proper function of government processes."

“The defendant’s comments about the virtues of the First Amendment, over which there is no dispute, do nothing to unsettle this line of unbroken precedent," Peace wrote.

“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,” the filing states.

“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 MAGA lawyers added.

“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.”

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Trump has maintained that his pressuring state and local officials to discredit President Joe Biden's victory was a form of "advocacy," as he claims he truly thought the election had been stolen from him. Smith and prosecutors have vehemently refuted this claim, however, with Pearce writing in the filing that "Knowing lies are neither opinions nor ‘pure advocacy,’ and in any event, the defendant could not use so-called advocacy as a cover for his scheme to obstruct a governmental function through deceit."

"Were it otherwise, defendants captured en route to a bank robbery could not be charged with conspiracy because their crime did not succeed.”

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Pearce also cited a list of historical elections referenced by Trump's legal team in their own filings, as Politico noted. These elections, which included those from 1800 and 1960, saw controversies surrounding slates of electors at their core. 

“Notably absent from any of these historical episodes, however, is any attempt by any person to use fraud and deceit to obstruct or defeat the governmental function that would result in the certification of the lawful winner of a presidential election,” Pearce concluded. “The existence throughout history of legitimate electoral disputes does not validate the defendant’s corrupt and dishonest actions any more than the existence of legitimate investment offers validates the creation of a criminal Ponzi scheme.”

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

Brief Donald Trump Jack Smith Politics Tanya Chutkan Todd Blanche