Special counsel Jack Smith’s team of prosecutors filed a response to former President Donald Trump’s attempts to dismiss his federal Jan. 6 case, signaling that certain statements that the former president made after the Jan. 6 Capitol breach would be used against him during the trial next year.
“Of the January 6 Choir, the defendant told the crowd, ‘[O]ur people love those people, they love those people’,” prosecutors wrote. “In the years since January 6, despite his knowledge of the violent actions at the Capitol, the defendant has publicly praised and defended rioters and their conduct,” they added.
The court filing added that the “indictment squarely charges the defendant for this conduct, and the defendant’s constitutional and statutory challenges to it are meritless.”
One of the former president’s arguments stipulates that his public comments saying the 2020 election was beset by voter fraud are protected under the Constitution’s First Amendment.
But federal prosecutors rejected that assertion Monday, writing that “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,” although they did not elaborate on how they can prove that President Trump knowingly knew that his speech was fraudulent.
However, if President Trump could provide evidence that he believed the 2020 election was conducted in a fraudulent manner, his use of certain claims that the election was stolen would make him guilty of an effort over what they said is an attempt to commit fraud against the government, prosecutors wrote.
“Were it otherwise, defendants captured en route to a bank robbery could not be charged with conspiracy because their crime did not succeed. Indeed, a conspiracy can be committed even if the object of the conspiracy is unattainable,” prosecutors said.
Going a step further, Mr. Smith’s team wrote that President Trump “stands alone in American history for his alleged crimes” and that “no other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power.”
The former president has denied the charges against him, contending that it’s part of attempts to demonize him to wound his political chances. In recent social media posts, President Trump wrote that the federal election case as well as others that were brought against him earlier this year were attempts to interfere in the 2024 election, noting that polls show he is the top GOP candidate by a large margin.
U.S. District Judge Tanya Chutkan, an appointee of former President Barack Obama who recently placed a gag order on President Trump, will have the final say on whether the election case will proceed. She has not issued a ruling yet on the Trump motions to dismiss the indictment.
Last month, President Trump’s lawyers wrote in a motion that federal prosecutors “behaved in a discriminatory and unconstitutionally selective fashion” by targeting their client, adding that he has protected speech under the First Amendment. It also contends that the prosecution is being pushed ahead by “an unconstitutional discriminatory purpose” and only advances the Biden administration’s “objective to use the criminal justice system to incapacitate [Trump], his main political rival and the leading candidate in the upcoming election.”
What’s more, prosecutors are targeting President Trump’s ability to exercise “his constitutional rights to free speech and to petition for the redress of grievances, and his decision to run for political office.”
The Trump legal team also wrote in court motions that he is immune from prosecution because he was acting in his official capacity as president. The special counsel responded to that argument last month, rejecting those claims.
Prosecutors said that “every court to have considered the issue has concluded that there is no constitutional right to a televised trial,” according to their court filing on Nov. 3. The longstanding rule that disallows the broadcasting of federal trials was implemented to ”avoid the risks that policymakers have determined cameras pose to the fair administration of justice,” Mr. Smith’s lawyers said.
However, media outlets said that it would serve the public interest to have cameras in the courtroom, as no other president has ever been charged with felonies in U.S. history.
CNN legal analyst Elie Honig noted during a recent segment that no cameras would be problematic because “we’re gonna have young reporters running in and out of the courtroom texting us, trying to recount what happens.”
“Two or three hours after the end of every trial, they will get a 300-page transcript that some court reporter typed up, and we’ll get sketch drawings,” he said. “It’s not 1918 here! It’s 2023. We need to get with it.”
