Trump lawyers argue Senate impeachment acquittal means 2020 election interference case should be dismissed

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WASHINGTON — Former President Donald Trump is seeking to toss out the federal election obstruction case against him, arguing in court filings Monday that his actions are protected by the First Amendment and that he can't be tried again after the Senate acquitted him in his impeachment trial.

In court filings submitted shortly before midnight, lawyers for Trump argued that the charges are legally faulty, noting Congress’ unsuccessful efforts to remove him in the final days of his presidency.

"The United States Senate has previously tried and acquitted President Trump for charges arising from the same course of conduct alleged in the indictment, the impeachment and double jeopardy clauses both bar retrial before this Court and require dismissal," the filing argues.

Special counsel Jack Smith’s office in August indicted Trump on conspiracy charges to defraud the U.S. by claiming widespread election fraud in the 2020 election in an attempt to overturn Joe Biden’s electoral victory.

The indictment accuses Trump of involvement in three criminal conspiracies: “to defraud the United States by using dishonesty, fraud and deceit” to obstruct the electoral vote process; to “impede the Jan. 6, 2021, congressional proceeding at which the collected results of the presidential election are counted and certified”; and “against the right to vote and to have that vote counted.”

The first motion argues that the indictment should be dismissed on various constitutional grounds: First Amendment, double jeopardy and due process.

“The First Amendment embraces and encourages exactly this kind of behavior, and therefore states in the clearest of terms that ‘Congress shall make no law ... abridging the freedom of speech, ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,’” they wrote in the first motion. “The indictment, taken as true, violates this core principle as to each count. Accordingly, the Court should dismiss the indictment in its entirety.”

“The Constitution’s plain text, structural principles of separation of powers, our history and tradition, and principles of Double Jeopardy bar the Executive Branch from seeking to re-charge and re-try a President who has already been impeached and acquitted in a trial before the U.S. Senate,” they added.

In the second motion, Trump lawyer John Lauro argued the indictment should be dismissed because the prosecution failed to actually lay out how Trump violated the four statutes he’s charged under.

“The prosecution does not explain how President Trump violated these statutes, beyond simply saying he has while regurgitating the statutory language,” Lauro wrote. “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.”

The third motion argues the indictment should be dismissed because Trump is being selectively and vindictively prosecuted.

“This case, urged by Biden when many prosecutors and agents appropriately saw no basis for it, is a straightforward retaliatory response to President Trump’s decisions as Commander In Chief in 2020, his exercising his constitutional rights to free speech and to petition for the redress of grievances, and his decision to run for political office,” Lauro wrote.

In the third motion, Lauro also asks U.S. District Judge Tanya Chutkan to set a hearing date to explore the allegations.

“Here, at minimum, Biden’s statements from the White House and leaked accounts of flaws in the underlying investigation require additional fact finding before these arguments can be resolved,” he wrote.

Separately, Trump also filed a motion to strike references to the Jan. 6 Capitol attack from the indictment, arguing that such references are “prejudicial and inflammatory” because prosecutors don’t directly blame Trump for the violence.

“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," Lauro and fellow Trump attorneys Todd Blanche, Emil Bove and Gregory Singer wrote. "Therefore, the Court should strike these allegations from the Indictment.”

The motions were filed weeks after Trump’s legal team argued in a court filing that he should be shielded from prosecution in the election interference case because of presidential immunity, claiming his efforts to overturn his election loss and remain in the White House were at “the heart of his official responsibilities as President.”

Trump's lawyers rebutted the special counsel’s claim that “President Trump’s motives were impure — that he purportedly ‘knew’ that the widespread reports of fraud and election irregularities were untrue.” They argued that “hundreds of years of history and tradition” show that it’s unreasonable for prosecutors or judges to decide a president’s motivations.

Trump’s actions “are within the ambit of his office, and he is absolutely immune from prosecution,” Trump’s lawyers wrote in the court filing, citing a 1982 Supreme Court decision that involved former President Richard Nixon.

A trial in the federal election interference case is set for March 4, coinciding with Republican presidential primaries and the day before Super Tuesday.

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