The filings, combined with an earlier motion to dismiss the case citing his “immunity” from prosecution for his conduct as president, represent Trump’s full strategy for preventing the case against him from ever reaching a jury. Trump repeatedly points to the unprecedented nature of the charges against him and says crimes he’s accused of were not meant to criminalize what he did in his final, frenzied bid to remain in power.
Trump’s motions pose the latest test for U.S. District Court Judge Tanya Chutkan, who is grappling with the extraordinary nature of the case. Trump is the first former president to face criminal charges — including federal cases brought by Smith in Washington, D.C., and Florida. But it’s Chutkan’s case, scheduled to begin on March 4, that appears poised to reach a jury first. And Chutkan’s rulings can be appealed, triggering potential legal showdowns at the D.C. Circuit Court of Appeals or even the Supreme Court prior to Trump’s trial.
Chutkan has already fended off an effort by Trump to force her recusal from the case and issued a gag order aimed at preventing Trump from mounting public attacks that might taint the D.C. jury pool or intimidate prospective witnesses. Trump has appealed her order and Chutkan has briefly suspended it while she considers his concerns.
Trump’s wide-ranging attack on the indictment features three main arguments: that the charges defy his First Amendment rights, that he’s being vindictively targeted by a political rival and that the crimes he’s accused of do not align with what he actually did in the aftermath of the 2020 election.
For example, Trump — via his attorneys John Lauro and Todd Blanche — argued that his campaign’s effort to submit false slates of presidential electors to Congress was not an act of “deceit” or “trickery” required to prove he conspired to defraud the government. Rather, Trump allies publicly announced their intentions to send their preferred electoral slates to Congress while leaning on Republican-controlled state legislatures to recognize them.
At the center of Trump’s argument is a claim that criminalizing his post-election behavior would similarly criminalize ordinary political advocacy like lobbying or protest. He 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 — noting that the opinion sought to protect all forms of political advocacy.
Prosecutors are certain to reject Trump’s characterization of his activities as benign political lobbying or an effort to support the integrity of elections. They say Trump spread knowingly false information about voter fraud to mount a pressure campaign against state governments and his own vice president, Mike Pence, in an effort to defraud the United States. He was atop a criminal conspiracy, they contend, that included assembling false slates of presidential electors to stoke a conflict on Jan. 6, when Congress met to finalize the results of the election, and surrounded himself with attorneys who crafted fringe theories intended to justify the effort. All of it, they say, was a pretense aimed at disrupting the transfer of power for the first time in American history.
Trump’s filings make little mention of the six alleged co-conspirators prosecutors described in the indictment — including attorneys Rudy Giuliani, John Eastman, Sidney Powell and Kenneth Chesebro, who developed the strategy Trump ultimately deployed in an effort to subvert the election on Jan. 6.
All four, along with Trump, have also been charged by Georgia prosecutors with an elaborate racketeering conspiracy aimed at subverting the state’s election laws as well. Last week, Chesebro and Powell pleaded guilty to aspects of their conduct and agreed to cooperate with prosecutors.