On Oct. 23, attorneys filed several motions to dismiss Special Counsel Jack Smith’s unprecedented case attempting to put former President Donald Trump in jail for up to 35 years. The three new motions filed at 9:14 p.m. Monday move to dismiss the case on both statutory and constitutional grounds and allege “selective and vindictive prosecution” before U.S. District Judge Tanya Chutkan, a foreign-born Obama appointee who has publicly expressed personal animus against Trump and his supporters and refused to recuse herself from the case.
The filing appears to set up the case for appeal to the Supreme Court. Smith’s August indictment alleged Trump’s disputes with the reliability of the 2020 election amount to criminal conspiracies and obstructions.
Monday’s motion to dismiss based on constitutional grounds argues the entirety of Smith’s case against Trump is based on prosecuting the latter’s speech. Free speech is a constitutionally secured American right.
“Additionally, as 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,” says the constitutional dismissal motion. “Finally, because of our country’s longstanding tradition of forceful political advocacy regarding perceived fraud and irregularities in numerous Presidential elections, President Trump lacked fair notice that his advocacy in this instance could be criminalized. Thus, the Court should dismiss the indictment under the Due Process clause as well.”
The motion quotes multiple Supreme Court cases, including multiple leftist justices, affirming that Americans have a constitutionally protected right to speak freely, even when their statements are false. Chutkan has stated she believes the speech Smith is attempting to criminalize with his indictment — publicly alleging problems with an election Democrats won — comprises “conspiracy theories.”
Another motion seeks to introduce some protections for Trump in a case that may involve a Washington, DC jury pool in a district where 92 percent voted for the president who demanded Trump’s current prosecution. It requests the judge strike “inflammatory allegations” from Smith’s indictment: “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.”
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