Deep Dive: Trump's Motions to Dismiss the D.C. Prosecution

Motions Practice

As all eyes continue to be on Trump’s performance in court in New York today, we turn away to consider what’s next up for the former president. We expect to see the Special Counsel’s responses to Trump’s dispositive motions in the District of Columbia case later today. I’m sending the newsletter out earlier than usual, so we can review what’s in Trump’s four motions, which total 128 pages, before we get hit with the government’s responses.

These motions are important because they are the core of Trump’s effort to defend himself in the case and a big part of the reason he hired former Florida Solicitor General Chris Kise (Trump’s save America PAC actually footed the bill) to represent him, paying a $3 million dollar retainer upfront. Trump’s lawyers are trying to convince the Judge to dismiss the indictment before he has to stand trial.

The former president is charged in the indictment with three counts of conspiracy and one substantive count:

• Conspiracy to defraud the United States

• Conspiracy to obstruct an official proceeding

• Obstruction/Attempt to obstruct an official proceeding

• Conspiracy against rights

Under Judge Chutkan’s initial scheduling order, Trump had until October 9, 2023, to file these dispositive motions. Trump tried to get Judge Chutkan to give him additional time to file, just in advance of the due date. But in an October 6 order, Judge Chutkan ruled against him, granting only two additional weeks. The order is worth reading—the Judge was extremely careful to support her ruling. Although she gave Trump extra time to file motions seeking permission to issue subpoenas or evidence from the government or third parties, she gave Trump little leeway when it came to the motions regarding dispositive issues of law.

In that regard, Judge Chutkan ruled: “If the court were to extend the briefing schedule for these motions by the requested sixty days, they would not be fully briefed until January 2024. In other words, what the defense anticipates will be ‘numerous novel and complex legal issues . . . of first impression,’…would not be fully presented to the court until fewer than three months before the scheduled trial date of March 4, 2023…Backloading the pretrial schedule to that degree will not serve the interests of justice. Moreover, such dispositive motions will by their nature turn on legal issues-such as the sufficiency of the government's pleadings-that the defense has had months to anticipate, research, and brief…The defense confirmed at the August 28, 2023 hearing that it had already begun work on those motions…In fact, the defense filed its Motion to Dismiss Indictment Based on Presidential Immunity on October 5, 2023, well ahead of the October 9 deadline…”

The Judge gave Trump until October 23, 2023, to file his dispositive motions. She gave prosecutors fourteen days to respond. Because Trump had previously filed his motion to dismiss based on presidential immunity ahead of the deadline, prosecutors responded to that one in mid-October. We can expect to see the remainder of the responses by the end of today, Monday. Trump will have ten days to file his replies.

Collectively, these motions are Trump’s moonshot, his hope beyond hope that he can make it all go away, even though that seems highly unlikely. In fact, his best ambition may be to delay the trial, perhaps until after the election, with a messy appeal process. As we’ve noted in other contexts, the hope here has to be that the federal courts are prepared to act swiftly.

Not all issues can be appealed in advance of trial; in fact, there’s a preference for deferring appeals until after there has been a finding of guilt—if a defendant is acquitted, there is no need for an appeal because the government cannot try him again. But some of the issues Trump raises, notably those involving immunity, can be appealed immediately. Then it will be up to the District of Columbia Circuit to act expeditiously. The Supreme Court is not obligated to hear an appeal if Trump loses there—they can summarily affirm if enough justices agree. Given the gravity of this case, they may be inclined to hear the appeal, and again, the question would be how quickly they can move.

We may get some hints as we watch Trump’s appeal of the gag order in D.C. work its way through the courts. The court of appeals set an extremely fast pace for briefing in that matter. It remains to be seen how quickly they will decide that matter.

On to the motions:

Trump filed the first one on October 5, 2023:

Motion One: Document 74. Presidential Immunity Motion

We discussed this motion here, when it was filed, so I won’t rehash the details at length. As I wrote at that time: “No matter how Trump’s lawyers try to dress up their argument, at bottom, it is that a president is above the law. And that’s not how our criminal justice system is meant to work. Trump’s lawyers make arguments about what the Founding Fathers intended, about history, tradition, and the text of the Constitution. But they ignore the inexorable fact that the Founding Fathers, while contemplating the need for a system that could deal with a corrupt leader, clearly stated that no man was above the law.”

Trump’s lawyers have to convince the court that presidential immunity exists in criminal cases. Although earlier decisions have established immunity for civil cases, no case has resolved the issue of whether a president is entitled to immunity for crimes committed during his presidency once he leaves office. There are compelling reasons that no such immunity should exist. Even if the courts were to decide that it does, Trump would still have to establish that it applies to him in this case. Trump argues that: “The indictment is based entirely on alleged actions within the heartland of President Trump’s official duties, or at the very least, within the “outer perimeter” of his official duties. As President Trump is absolutely immune from criminal prosecution for such acts, the Court should dismiss the indictment.”

In their response, prosecutors urged the court to reject Trump’s motion, arguing that presidents and former presidents are not above the law. They pointed out that if the court accepts Trump’s view, presidents could take bribes, order the Director of the FBI to plant evidence against political rivals, direct the National Guard to murder critics, or sell nuclear documents to foreign powers while in office, while facing no legal consequences when they leave office. It is an untenable view in a democracy.

Smith’s response is here. Trump’s reply brief, the final argument the party who files a motion is entitled to make after seeing his opponent’s position, is here.

Trump filed three additional dispositive motions on October 23, 2023, the extended deadline the Judge gave him. Government lawyers asked for and received permission from the court to file a combined response to the motions arguing the indictment should be dismissed on constitutional and statutory grounds, which makes sense because of some confusing overlap in those motions. Normally, this would be an irrelevant detail, but Trump’s lawyers refusal to consent to the government’s request to consolidate its response is telling as to the combative nature of their client. Typically, this sort of request would be unopposed; it’s not substantive. But not with Trump.

Motion Two: Document 113. Constitutional Grounds

Trump offers three different Constitutional reasons to dismiss the indictment: violation of his First Amendment rights, double jeopardy, and due process claims.

First Amendment: The primary argument is that the charges against Trump involve conduct that is protected by the First Amendment. His lawyers write: “Countless millions believe, as President Trump consistently has and currently does, that fraud and irregularities pervaded the 2020 Presidential Election. As the indictment itself alleges, President Trump gave voice to these concerns and demanded that politicians in a position to restore integrity to our elections not just talk about the problem, but investigate and resolve it.” In other words, his lawyers argue that all he did was engage in protected speech.

Jack Smith was careful in the opening paragraphs of the indictment to clarify that the government understood Trump’s First Amendment rights and was not charging him for exercising them. Rather, the indictment charges him with conduct that violates the law—conspiring to perpetrate a fraud, and to interfere with government proceedings and people’s rights to vote.

Trump’s lawyers correctly note the way a court should evaluate a motion to dismiss. At this stage in the proceedings, it’s not about whether the facts alleged by the government to support the charges are true or not. It’s about whether those facts, if true, would be legally sufficient to support the charge against the defendant. Trump argues they aren’t sufficient here, because the charges would criminalize “core political speech,” which, his lawyers make a point of reminding the court, is protected even if it is not true. They write, “the First Amendment fully protects opinions and claims on widely disputed political and historical issues.”

Look for the government to argue that Trump is not entitled to use the First Amendment as a shield to protect him from accountability for a criminal scheme designed to defraud the government, interfere with an official proceeding, and deprive people of their right to vote just because he was also speaking publicly around the time he committed crimes. He’s not charged with inciting an insurrection in his speech on the Ellipse. Although the government might have brought those charges, they stayed well away from anything that could implicate the First Amendment. The charges against Trump involve conduct that goes beyond protected speech. For instance, Trump may have used speech about his claims the election was rife with fraud to solicit Mike Pence to join the conspiracy that would have blocked certification of the Electoral College vote, but his conduct, and the pressure campaign used on Pence still constitute crimes.

Double Jeopardy: Trump argues his prosecution is barred by double jeopardy, reasoning that because he was acquitted by the Senate during impeachment “for charges arising from the same course of conduct alleged in the indictment,” he can’t be retried in criminal court and the indictment should be dismissed. His lawyers point to language in the Constitution that says a president who has been impeached and removed from office can subsequently be indicted. They claim that language means only a president who has been convicted during impeachment can face criminal charges afterwards and that this language prevents his prosecution because the Senate didn’t convict him. They write that the Constitution “presupposes that a President who is not convicted may not be subject to criminal prosecution.”

Trump saw it differently during his impeachment trial, where he argued he could be prosecuted later if the Senate acquitted him. Now, his lawyers are contorting the language in the Constitution to find a meaning that isn’t there. Prosecutors will likely argue that this clause in the Constitution was intended to limit Congress’s power to remove and disqualify presidents from office, not to preclude the prosecution of those who escaped removal.

This isn’t double jeopardy as we normally see it. The rule is that a defendant can’t be tried twice on the same charges by the same sovereign. That’s not what is happening here. Impeachment is a political process with no risk of prison time as a result of a “conviction”—the consequences are political in nature, removal from office. Trump isn’t subjected to double jeopardy here as that term is commonly used. This is the first time he’s been indicted on criminal charges. He has not been “placed in jeopardy” of a criminal conviction more than once.

Due Process: Finally, Trump maintains that his due process rights were violated because he lacked sufficient notice that his conduct was criminal. He argues that because of the First Amendment and “our country’s longstanding tradition of forceful political advocacy regarding perceived fraud and irregularities in numerous Presidential elections,” he wasn’t on notice that his conduct following the 2020 election violated the law. His lawyers argue that claiming an election was rigged is “a staple of American political discourse,” not a crime.

It is true that laws that are too vague to put a defendant on notice that his conduct is a crime violate constitutional guarantees of due process. But that’s going to be a stretch for a defendant who, after being advised he’d lost the election, relentlessly pursued ways to remain in office, including replacing his attorney general with a more malleable one and using the military to collect voting machines.

The legal theories behind Trump’s arguments are not entirely frivolous. Although his lawyers take a stupefyingly benign view of his increasingly frantic efforts to prevent Biden from becoming president, the theories would raise legitimate issues if they were in fact supported by fact. We should expect the courts to weigh them carefully. They are matters that have to be decided before the case can progress, but that doesn’t make them meritorious.

Motion Three: Document 114. Statutory Grounds

To fully appreciate this motion, you have to get a taste of the anger and outrage Trump’s lawyers bring to bear straight off the bat: “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” the law.

This is the meat of their argument: “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.” As far as arguments go, this one is like offering up something you claim is a hamburger, but it’s really just two buns with a slice of onion in between.

Trump argues that each count in the indictment is legally insufficient:

• The conspiracy to defraud charged in count one “requires a showing of trickery or deceit, which the indictment does not allege.”

• Counts two and three charge a conspiracy to interfere with an official proceeding and an attempt to do so, but they “fail as a matter of law because the indictment does not properly allege that President Trump acted “corruptly,” or that his conduct attempted to, conspired to, or did “obstruct[]” or “impede[]” the 2021 election certification proceeding in Congress.”

• The civil rights conspiracy charge in count four requires proof of specific intent to interfere with another’s constitutional rights, which the government failed to allege.

Indictments are, in essence, a recitation of the elements in the statute along with sufficient detail to put a defendant on notice of the acts he’s alleged to have committed. The indictment must detail the defendant’s involvement in the prohibited act, the necessary state of mind, and any additional circumstances dictated by the statute. A high level of detail is not required, although conspiracy indictments, as we’ve previously noted, are most often “speaking indictments” that provide far more in the way of factual background. But the Federal Rules of Criminal Procedure require only that: “the indictment…must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion.” Trump seems to be asking for more than the government is required to provide here.

Motion Four: Document 116. Selective & Vindictive Prosecution

Finally, Trump argues the indictment should be dismissed because the charges against him are the result of politically motivated “selective” and “vindictive” prosecution intended to boost Biden’s reelection campaign. In essence, the argument is that Trump is being treated differently and worse than others because of political animus. Of course, that argument overlooks the unique nature of Trump’s conduct among former president’s and even among others who have challenged election results.

In any event, these types of claims rarely succeed because prosecutors have broad discretion to determine who should be charged and what they should be charged with. To prevail on a selective prosecution claim, Trump has to establish that the decision to charge him had both a “discriminatory effect” and a “discriminatory purpose.” And to make out a claim for vindictive prosecution, he must go beyond that and show that prosecutors retaliated against him for exercising his legal rights and that all of the circumstances surrounding the prosecution, when taken together, support a realistic likelihood of vindictiveness. That’s a heavy lift here. The record doesn’t reflect any of those facts.

Trump’s lawyers argue that our history reflects many instances of people contesting election results without being prosecuted. They also rely on news reports that they say indicate Biden wanted Trump prosecuted. But the allegations of political motivation rest on thin ice—no president has ever gotten close to what Trump did in trying to overturn an election, and by all accounts, Biden has expressly stayed at a remove from Justice Department cases, in strong contrast to his predecessor.

---

In addition to the four motions to dismiss, Trump also filed a motion to strike what he calls “inflammatory allegations” from the indictment. He argues that, “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.” Whether or not the judge grants the motion as to what’s in the indictment, it’s almost certain testimony about the attack on the Capitol in some form will be included at trial. It’s part of the res gestae, the events and circumstances that are admissible in evidence because they are necessary to explain the context in which a crime took place, but also, Trump’s delay in acting while the attack was underway is indicative of his state of mind about efforts to interfere in certifying the election. Since his state of mind is an essential element prosecutors must prove, they’ll be entitled to get into this at trial, whether Trump thinks its inflammatory or not.

All good evidence is prejudicial in the sense that it tends to prove the defendant’s guilt. The question for judges at trial is whether evidence is “unduly” prejudicial, and here, where the evidence goes to an element of the prosecution’s charges, that’s not the case.

Thanks for sticking with me through all of this. I know it’s a lot of legalese, but these motions are the heart of Trump’s effort to defend against the indictment, or at least to do so short of a trial. Lots more to take in when we see Jack Smith’s responses.

We’re in this together,

Joyce