President Trump Files Motions To Dismiss

President Donald Trump's attorneys filed three separate motions to dismiss Monday against the bogus January 6 indictment in Washington D.C. 

MOTION to Dismiss Case Based on Constitutional Grounds

"First and foremost, 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 indictment therefore attempts to criminalize core political speech and political advocacy, which is categorically impermissible under the First Amendment. As the Supreme Court held in Texas v. Johnson, '[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.'"

• "Consider any number of disfavored claims on a host of controversial topics, all deemed to be demonstrably 'false' and 'disinformation' by the Government at various times—such as claiming that masks do not stop the transmission of COVID-19, that vaccines do not stop the transmission of COVID-19, that COVID-19 originated from a lab in Wuhan, China, and that the 2020 Presidential election was stolen. Can the Government prosecute a citizen for attempting to 'defraud the United States' by making supposedly 'false' statements to government officials for (1) opposing mask mandates by telling legislators that they don’t stop transmission, (2) opposing vaccine mandates by telling legislators that they don’t stop transmission, and/or (3) urging the investigation of China by telling government officials that COVID-19 leaked from a lab? Under the First Amendment, the answer is 'no'—and that absolutely applies to claims that the 2020 Presidential election was stolen as well."

• "Thus, under the First Amendment, the prosecution cannot criminalize claims that the 2020 Presidential election was stolen; and it cannot, by prosecution, seek to impose its view on a disputed political question like the integrity of the 2020 Presidential election. 'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.' W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)"

• "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—implicate all the fundamental First Amendment principles discussed above. They constitute (1) core political speech (2) expressing a specific disfavored viewpoint (3) on matters of enormous public concern (4) that relate to a widely disputed historical, social, and political question (5) 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."

"The Prosecution Is Barred by Principles of Double Jeopardy"

• "The text of the Constitution straightforwardly provides that only a 'Party convicted' by the Senate may be charged by 'Indictment, Trial, Judgment and Punishment'—not a party acquitted. As the Senate acquitted President Trump, the prosecution may not re-try him in this Court."

• "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."

"The Indictment Violates the Fair Notice Doctrine of the Due Process Clause."

• "There is a long history in our Nation—dating back to 1800 and encompassing elections in 1800, 1824, 1876, 1960, 2000, 2004, and 2016, among many others—of disputing the outcome of close Presidential elections, publicly claiming that election results were tainted by fraud, filing legal actions to challenge election results, lobbying Congress to certify disputed election results in one side’s favor or the other, and organizing alternate, contingent slates of electors to assist in such efforts. In other words, all 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. President Trump is the first person to face criminal charges for such core political behavior as disputing the outcome of an election."

• "At the time of the allegations in the indictment, the only relevant judicial precedent, from 2000, treated post-election challenges as lawful and included a dissent arguing that competing elector slates could be submitted to Congress for Congress to decide which to accept. Furthermore, the actions listed in the Indictment had been performed in 1800, 1824, 1876, and 1960, among others, without any suggestion they were criminal. Scores of people have been involved in similar conduct over the years of American history, and none has faced criminal prosecution. On these facts, at best, 'men of common intelligence must necessarily guess' if President Trump’s conduct violated the statute, and the charges thus violate the Due Process Clause."

MOTION to Dismiss Case Based on Statutory Grounds

• "Targeting an audience other than this Court, the prosecution’s indictment in this matter rants endlessly about President Trump’s politics and—in a shockingly un-American display of authoritarianism—accuses him of crimes for having and expressing the 'wrong' opinions. Buried at the end of this diatribe are conclusory statements that President Trump’s alleged actions somehow violated 18 U.S.C §§ 241, 371, 1512(k), 1512(c)(2), 2. The prosecution does not explain how President Trump violated these statutes, beyond simply saying he has while regurgitating the statutory language. As explained herein, the reason the prosecution employed this tactic is plain—President Trump did not violate the charged statutes, even accepting the prosecution’s false allegations as true. Accordingly, the Court should dismiss the indictment for failure to state an offense."

MOTION to Dismiss Case for Selective and Vindictive Prosecution

• "The core conduct alleged in the indictment relating to the presentation of alternate electors has a historical basis that dates back to 1800 and spans at least seven other elections. There are no other prosecutions in American history relating to these types of activities. The allegations in the indictment involve constitutionally authorized activities by President Trump as Commander In Chief, as well as speech and expressive conduct protected by the First Amendment."

• "Given this context, it is no surprise that in the months following the 2020 election, senior government officials rejected an investigation of President Trump as unfounded and potentially unconstitutional. However, biased prosecutors pursued charges despite the evidence, rather than based on it, with one prosecutor violating DOJ rules and ethical norms by forecasting the investigation in a television interview on 60 Minutes. Even the Attorney General felt 'boxed in' by the onslaught. Unable to address criticism from President Trump through lawful means—while facing public pressure from a House committee investigation not confined by a burden of proof or the same due process standards, i.e., the same congressional investigation that failed to preserve a huge amount of exculpatory evidence—Joe Biden pressured DOJ to pursue the nakedly political indictment in this case months before the FBI had even opened an investigation."

• "Less than a week before President Trump announced his candidacy for the Presidency in the 2024 election, Biden used the White House itself to tell anyone listening that he was 'making sure' that President Trump 'does not become the next President again.' 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. These actions, which are demonstrated by, inter alia, Biden’s public statements and reports from the New York Times and Washington Post based on leaks from participants in the investigation, require further inquiry and dismissal of the indictment."