Former President Donald Trump’s legal team filed several responses on Nov. 22, insisting that U.S. District Court Judge Tanya Chutkan dismiss the Justice Department’s (DOJ) prosecution because, they argued, the Biden administration selectively and vindictively targeted him while abusing its statutory authority and seeking to violate multiple constitutional protections.
The three filings represent the latest in a series of pre-trial submissions prompted by President Trump’s various motions to dismiss the case. Besides leveling constitutional, statutory, and selective prosecution allegations, the former president has also argued that the case should be dismissed due to the protection he received under the doctrine of presidential immunity.
The Nov. 22 filings, however, center on constitutional provisions surrounding double jeopardy, free speech, and due process; as well as purported evidence of a selective prosecution directed by President Joe Biden, the presumptive Democratic nominee and President Trump’s chief rival for the White House in 2024.
“The prosecution seeks to install itself as America’s censor, with roving authority to criminally prosecute all who speak out against its approved narratives,” reads a filing from President Trump’s legal team.
“The prosecution has no such mandate. Accordingly, the indictment is unconstitutional on its face and must be dismissed. Additionally, even if the First Amendment permitted charges on this basis—which it emphatically does not—President Trump’s acquittal before the United States Senate forecloses retrial before this Court, as do the Constitution’s guarantees of due process and fair notice.”
Competing interpretations of the First Amendment have been central to the motions to dismiss the DOJ’s case as President Trump’s attorneys allege that various aspects of the indictment stem from core political speech protected under the U.S. Constitution. Moreover, his attorneys argued, he shouldn’t be charged because he was not given fair notice that his conduct would violate the law.
DOJ had defended its indictment on Nov. 6 by alleging that President Trump’s legal team had misrepresented their indictment, which targeted purportedly fraudulent and deceptive speech not protected by the First Amendment.
“The allegations that the defendant sought to overturn the results of the 2020 presidential election by resorting to fraud, deceit, and corruption place his conduct well outside the protections afforded by the First Amendment and likewise put him fully on notice that his conduct was criminal and thus subject to prosecution,” the DOJ wrote in a combined opposition to President Trump’s motions to dismiss on statutory and constitutional grounds.
“Finally, the defendant’s prior acquittal in a Senate trial following his impeachment in the House does not foreclose this criminal prosecution, and his particular reliance on the Double Jeopardy Clause is frivolous.”
President Trump’s motion to dismiss for selective and vindictive prosecution leverages media reporting about the Biden administration’s interests in the former president’s conduct and alleges that Special Counsel Jack Smith served as a “stalking horse” for President Biden.
“Despite all of the Special Counsel’s self-aggrandizing comments about the supposedly unprecedented nature of his manufactured allegations against President Trump, the truly unprecedented aspect of this case is that a sitting president successfully urged the Department of Justice ... to try to take down his chief political rival and, now, the leading candidate to be the next president,” President Trump’s legal team wrote in a Nov. 22 filing.
“President Biden was so successful, in fact, that the Special Counsel brought two deeply flawed cases against President Trump and has engaged in a reckless effort to proceed to trial in both as soon as possible—even while President Biden anxiously waits to learn whether he will be charged with crimes by a different Special Counsel.”
DOJ argued in a Nov. 6 filing that President Trump’s legal team engaged in rank speculation while offering “nothing more than conspiratorial narratives of prosecutorial bias and abuse.”
“This rumor and innuendo is not a substitute for proof, and it falls far short of the sort of clear, objective evidence that is required to support a selective or vindictive prosecution claim,” it added. “The defendant fails to satisfy the standard to support a request for discovery, much less the extraordinary step of dismissing the indictment.”
The prosecution also claimed that “there is no evidence that the indictment in this case was returned based upon anything other than the facts and the law.”
