Former President Donald Trump has several viable avenues to have the Supreme Court throw out federal charges he’s facing for his efforts to challenge the results of the 2020 election, several lawyers and Constitution experts told The Epoch Times.
His best case is that the charges encroach on his First Amendment rights, but he might also successfully assert presidential immunity or argue the law was impermissibly stretched by prosecutors, the experts said.
President Trump was charged by Special Counsel Jack Smith on Aug. 1 with obstructing electoral vote counting by Congress on Jan. 6 and conspiring to do so in order to stay in power.
The conspiracy was allegedly carried out by spreading false claims that fraud and illegalities swayed the election outcome and using those false claims in attempts to convince various officials to overturn the results.
President Trump’s lawyers have launched a barrage of motions to have the charges dismissed on constitutional grounds, statutory grounds, due to presidential immunity, and for malicious prosecution. While some of the claims are weak at best, others appear persuasive, according to the experts.
In practice, however, President Trump’s arguments will need to convince his judge, the appeals court, or, in the final instance, the Supreme Court.
The experts predict that the District of Columbia federal judge on the case, Tanya Chutkan, will almost certainly deny all the motions to dismiss. On Dec. 1, she indeed denied about half of them. They also acknowledged that the arguments would likely encounter resistance in the D.C. Circuit Court of Appeals, given its political leanings.
President Trump’s best chance will be in the Supreme Court, they contend.
Free Speech Argument
President Trump’s lawyers have asserted that the indictment runs afoul of the First Amendment by trying to criminalize political speech and advocacy.
“The prosecution seeks to install itself as America’s censor, with roving authority to criminally prosecute all who speak out against its approved narratives,” the lawyers wrote in a Nov. 22 brief.
“The prosecution has no such mandate. Accordingly, the indictment is unconstitutional on its face and must be dismissed.”
If prosecutors can claim that President Trump’s efforts to reverse election certifications amounted to a conspiracy to obstruct the government, then people advocating against other government actions, such as COVID-19 lockdowns or mask mandates could also face such charges, the lawyers argued.
The prosecutors retorted that such hypotheticals wouldn’t apply “absent additional information about the conduct and mental state of the individuals.”
But if that’s the case, the defense lawyers responded, it would give the government a license to probe said individuals for such additional information—”inquire into their mental state, knowledge, and associations.”
“The implication is that to get that information, investigation is necessary. Under the prosecution’s misconceived legal theories, then, every public statement a constituent makes to a member of Congress concerning a hotly debated topic is a license to open a federal criminal investigation into the person who made it—unless it is indisputably true,” the lawyers said.
“That, of course, contradicts the very nature of hotly debated topics, where the truth is, by definition, in dispute.”
This argument appears “sound” to Rob Natelson, one of America’s preeminent constitutional scholars who’s written extensively on the original meaning of the Constitution and the First Amendment in particular, including for The Epoch Times.
“Lying is protected by the First Amendment, except in a few cases such as fraud, lying to law enforcement, and defamation,” he said.
“It has to be so: Otherwise, as Trump’s lawyers claim, every statement would be open to investigation into the speaker’s motives. The effect would be, as the Supreme Court says [in previous cases], a severe ‘chilling effect’ on speech.”
The argument that the basis for the charges against President Trump “appears to primarily stem from his political activity” belongs to the “stronger” ones his lawyers put forward, according to Horace Cooper, a senior fellow with the National Center for Public Policy Research who formerly taught constitutional law at George Mason University.
“At least the Supreme Court is reticent to allow a charge based on constitutionally protected behavior,” he said.
Conspiracy, by law, doesn’t require any crime to actually be committed. At least two people simply need to agree to do something illegal, and then at least one of them needs to engage in at least one physical act—however minor or innocuous—in furtherance of the plan.
In the Trump case, however, it appears to Mr. Cooper and others that the entirety of the alleged conspiracy and even its objective were in fact legal.
“They have identified no specific behavior in and of itself in terms of the president’s advocacy that constitutes illegal behavior,” Mr. Cooper said.
The prosecutors argue the activity became illegal as it was done in bad faith.
But the real-world result seemed to be the same.
“There is no distinction between a person doing exactly that without a bad motive,” Mr. Cooper said.
To have the trial hinge on whether President Trump, in the deep recesses of his mind, truly believed his claims about the election is troubling to Mr. Cooper.
“I’m really concerned about the idea that we know the mindset of a person,” he said.
The strength of one’s subjective beliefs is nigh impossible to gauge, he said.
“The court is not going to give credence to the argument that the perception of Donald Trump and his team, even if you show at some period that it appears to waver, that that covers all of the legally protected behavior,” he said.
Judge Chutkan’s rejection of the First Amendment argument was so blanket that it rendered it “very weak” he said.
“She would have been better served by saying that there is behavior besides communication [protected by the First Amendment] that would constitute the conspiracy to act here,” he said.
Instead, the judge argued that “the crimes Defendant is charged with violating may be carried out through speech alone.”
Regardless of whether President Trump’s election challenges were illegitimate, the legal standard pursued by the prosecutors is dangerous, suggests a career attorney who has gained popularity analyzing the Trump cases through his anonymous X account “KingMakerFT.”
“It is an invitation to turn this country into a banana republic where the losing side, if it speaks out, if it tries to right a wrong, if it tries to argue that there was corruption in the election itself, they could put you in jail—if you lose, you go to jail,” he told The Epoch Times.
The lawyer, who retired several years ago after a 45-year career, asked for his real name to remain withheld.
Presidential Immunity Argument
President Trump’s lawyers have argued that his actions fell within the bounds of his presidential duties and thus can’t form a basis of a criminal prosecution.
The Supreme Court has ascribed the presidency broad legal immunity, but only from civil suits, not criminal charges.
“If the argument is that the mere fact that the president undertook this activity immunizes it from any legal scrutiny, the court has not been willing to go that far in a criminal case,” Mr. Cooper said.
“If, instead, the argument is that the activities were those of a constitutional officer and within the ambit of authority that the Constitution allows and therefore cannot be an element for a crime, I think that’s a much more robust argument.”
Judge Chutkan denied this argument, opining that criminal activity is automatically not within the bounds of presidential duties and presidents, much less former presidents, thus don’t enjoy immunity from criminal prosecution.
But that sidesteps the issue, according to KingMakerFT.
“If it’s within presidential duties it can’t be criminal … by implication, at least that’s the argument,” he said.
The issue goes back to the criminal intentions the prosecutors need to prove. Courts have been reluctant to probe motivations of government executives on matters that fall within their duties, he said.
The motivations of the executive lose relevance in such cases, Mr. Cooper said.
“If you are an office holder, you do not get struck of your status as an office holder because your actions are intended to effectuate your either continuing to stay in office or your attempt to be reelected,” he said.
“The Justice Department is creating a distinction that almost completely without merit.”
Mr. Cooper provided the example of President Joe Biden’s pronouncement of support for Israel.
“Did he do that because that’s America’s national security [interest]? Did he do that because he says that when he was a young man, he got a chance to meet with the Prime Minister of Israel? Or did he do it because he sat down with his advisers and realized that this is a chance for him to bolster his support within the Jewish community? Did he do that because he sat down with his wife and she just simply said, ‘I will divorce you if you don’t make this statement?’” he asked.
“A court is not going to attempt to drill down into that decision-making if in fact the president has the lawful authority to make the kind of pronouncement that Mr. Biden did.”
Judge Chutkan’s opinion, he says, “fails to give the space for free decision-making that the Constitution does in fact give the executive.”
What the judge could have done was to parse through the indictment for actions that could be argued were within presidential purview and then see if what’s left is enough to sustain the charges.
“She didn’t do that and I think that makes her dismissal decision weaker,” Mr. Cooper said.
Stretching the Law Argument
Lawyers for President Trump have argued that the prosecutors are trying to squeeze his actions into criminal statutes that shouldn’t apply.
The first count falls under Section 371—a conspiracy to defraud the government. But the law primarily deals with fleecing the government for money.
The prosecutors are using an interpretation of the law that also covers obstructing the government. President Trump’s lawyers, however, provided examples that suggest the Supreme Court has framed such obstruction more narrowly.
via zerohedge
