Trump's lawyers file challenges to Washington election subversion case, calling it unconstitutional

WASHINGTON (AP) — Lawyers for Donald Trump are raising new challenges to the federal election subversion case against him, telling a judge that the indictment should be dismissed because it violates the former president's free speech rights and represents a vindictive prosecution.

The motions filed late Monday in the case charging the Republican with plotting to overturn the results of the 2020 election he lost are on top of a pending argument by defense attorneys that he is immune from federal prosecution for actions taken within his official role as president.

Special counsel Jack Smith's team urged a judge last week to reject that argument and is expected to do the same for the latest motions. It is routine for defendants to ask a judge to dismiss the charges against them, but such requests are rarely granted. In Trump's case, though, the challenges to the indictment could at a minimum force a delay in a prosecution that is set for trial in Washington next March.

Taken together, the motions cut to the heart of some of Trump's most oft-repeated public defenses: that he is being prosecuted for political reasons by the Biden administration Justice Department and that he was within his First Amendment rights to challenge the outcome of the election and to allege that it had been tainted by fraud — a finding not supported by courts across the country or even by Trump's own attorney general.

The lawyers claim prosecutors are attempting to criminalize political speech and political advocacy, arguing that First Amendment protections extend even to statements “made in advocating for government officials to act on one’s views.” They said the prosecution team “cannot criminalize claims that the 2020 Presidential election was stolen” nor “impose its views on a disputed political question” like the election's integrity.

“The fact that the indictment alleges that the speech at issue was supposedly, according to the prosecution, ‘false’ makes no difference,” the defense wrote. “Under the First Amendment, each individual American participating in a free marketplace of ideas — not the federal Government — decides for him or herself what is true and false on great disputed social and political questions.”

Legal experts have said Trump's First Amendment claims are unlikely to succeed, particularly given the breadth of steps taken by Trump and his allies that prosecutors say transformed mere speech into action in a failed bid to undo the election.

Smith's team conceded at the outset of the four-count indictment that Trump could indeed lawfully challenge his loss to Democrat Joe Biden but said his actions went far beyond that, including by illegally conspiring to block the official counting of electoral votes by Congress on Jan. 6, 2021, when rioters who supported him stormed the Capitol and caused a violent clash with police and a delay to the proceedings.

A spokesman for Smith declined to comment on Tuesday.

The defense lawyers also contend that Trump, the early front-runner for the 2024 Republican presidential nomination, is being prosecuted for vindictive and political reasons, alleging that “Biden’s publicly stated objective is to use the criminal justice system to incapacitate President Trump, his main political rival and the leading candidate in the upcoming election.”

They say the Justice Department appointed Smith as special counsel last year as a way to “insulate Biden and his supporters from scrutiny of their obvious and illegal bias.”

In addition, Trump's lawyers are asking to strike from the indictment references to the pro-Trump mob’s attack on the Capitol because they say prosecutors have not accused the then-president of inciting the riot.

“Allegations in the indictment relating to these actions, when President Trump has not been charged with responsibility for them, is highly prejudicial and inflammatory because members of the jury may wrongfully impute fault to President Trump for these actions,” his attorneys wrote.

While Trump is not charged with incitement, prosecutors have clearly alleged that the former president’s actions led to the chaos at the Capitol on Jan. 6. The indictment notes that Trump urged supporters to travel to Washington and cites Trump’s speech ahead of the riot in which he urged the crowd to “fight like hell” and head to the Capitol.

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Richer reported from Boston.