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Trump Attorneys Argue ‘Vindictive’ Special Counsel Indictment Criminalizes Speech

Donald Trump
Image CreditGage Skidmore / Flickr / CC BY SA 2.0, cropped

A ‘sitting President’s Administration is prosecuting his chief political opponent for supposedly making “false” claims challenging the validity of the sitting President’s election.’


On Oct. 23, attorneys filed several motions to dismiss Special Counsel Jack Smith’s unprecedented case attempting to put former President Donald Trump in jail for up to 35 years. The three new motions filed at 9:14 p.m. Monday move to dismiss the case on both statutory and constitutional grounds and allege “selective and vindictive prosecution” before U.S. District Judge Tanya Chutkan, a foreign-born Obama appointee who has publicly expressed personal animus against Trump and his supporters and refused to recuse herself from the case.

The filing appears to set up the case for appeal to the Supreme Court. Smith’s August indictment alleged Trump’s disputes with the reliability of the 2020 election amount to criminal conspiracies and obstructions.

Monday’s motion to dismiss based on constitutional grounds argues the entirety of Smith’s case against Trump is based on prosecuting the latter’s speech. Free speech is a constitutionally secured American right.

“Additionally, as the United States Senate has previously tried and acquitted President Trump for charges arising from the same course of conduct alleged in the indictment, the impeachment and double jeopardy clauses both bar retrial before this Court and require dismissal,” says the constitutional dismissal motion. “Finally, because of our country’s longstanding tradition of forceful political advocacy regarding perceived fraud and irregularities in numerous Presidential elections, President Trump lacked fair notice that his advocacy in this instance could be criminalized. Thus, the Court should dismiss the indictment under the Due Process clause as well.”

The motion quotes multiple Supreme Court cases, including multiple leftist justices, affirming that Americans have a constitutionally protected right to speak freely, even when their statements are false. Chutkan has stated she believes the speech Smith is attempting to criminalize with his indictment — publicly alleging problems with an election Democrats won — comprises “conspiracy theories.”

Another motion seeks to introduce some protections for Trump in a case that may involve a Washington, DC jury pool in a district where 92 percent voted for the president who demanded Trump’s current prosecution. It requests the judge strike “inflammatory allegations” from Smith’s indictment: “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.”

Do Voters Decide Political Questions, Or Courts?

A footnote in the constitutional motion cites The Federalist’s reporting on 2020 election interference, a February 2021 Time article depicting powerful leftists’ “shadow effort” to influence the election, and an Aug. 2023 CNN poll showing “Almost 40 percent of Americans, including almost 70 percent of Republicans, believe that the 2020 Presidential election was tainted by fraud or irregularity—a number that is increasing and has increased since 2020.”

The motion argues it’s unconstitutional to criminalize false beliefs and notes that Smith’s indictment would make America’s most powerful people the arbiter of truth. It concludes that the 2020 election fairness must be a matter of public debate, not criminalized in courts.

“[I]n every case, the indictment’s basis for the allegation that President Trump’s claims were ‘knowingly’ false is that a member of the political establishment assured President Trump that they were false,” it notes. “…Under the First Amendment, President Trump and his supporters are entitled to mistrust the word of such establishment-based government officials and draw their own inferences from the facts.”

The constitutional motion closes by noting the long American history of fiercely contesting elections, including the presidential elections of 1800, 1824, 1876, 1960, 2000, 2004, and 2016. Notably, in Trump’s first presidential contest, his challenger not only repeatedly alleged the election had been “stolen,” but her campaign devised a massive disinformation campaign around that narrative that led to federal spy and legal agencies surveilling, investigating, prosecuting, and overall hamstringing Trump during his entire presidency. The Democrat-run White House, predating Trump, assisted those efforts.

The current Democrat-run White House is involved in efforts to suppress information about these historical facts. A groundbreaking case about this is currently before the U.S. Supreme Court, which temporarily allowed Democrats to continue interfering with elections by controlling what information Americans hear and see.

“[A]ll the chief alleged acts charged in the indictment have a long historical pedigree in American electoral history, and they have long been decided in the political arena,” the constitutional motion dismiss states. “President Trump is the first person to face criminal charges for such core political behavior as disputing the outcome of an election. He is charged, moreover, under statutes that facially have nothing to do with his alleged conduct, and whose language the Special Prosecutor stretches beyond recognition.”

‘Selective and Vindictive Prosecution’

A third motion to dismiss filed Monday night concerns “selective and vindictive prosecution.” It notes Joe Biden pressured the Department of Justice he oversees to prosecute his opponent in both the previous and next elections. Before the DOJ appointed Smith special counsel to investigate Trump, the complaint notes, citing The Washington Post and New York Times, multiple senior DOJ officials had rejected subordinates’ pitches of legally pursuing Democrats’ top political opponent.

In April 2022, the Times reported, “Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted.” On Nov. 9, 2022, at a press conference, Biden publicly said of Trump: “We just have to demonstrate that he will not take power—if we—if he does run.”

Trump’s lawyers argue in this motion that “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.”

Chutkan has already approved a gag order banning Trump — and anyone who communicates with him — from criticizing the DOJ, Chutkan, politicians who may become involved in any case related to Trump, or anything Chutkan personally finds inflammatory. If Chutkan decides Trump has violated this order, he could be subject to fines, home detention, or jail time.

“This case, urged by Biden when many prosecutors and agents appropriately saw no basis for it, is a straightforward retaliatory response to President Trump’s decisions as Commander In Chief in 2020, his exercising his constitutional rights to free speech and to petition for the redress of grievances, and his decision to run for political office,” the “vindictive” motion argues.

Trump’s lawyers argue that, based on these arguments, Chutkan should dismiss the indictment. Failing that, the lawyers argue for at least a hearing to suss out further evidence relating to prosecutors’ “vindictive” attempt to put Democrats’ No. 1 political opponent in jail for the rest of his life.

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