Return To Never Was

So, I m taking this largely from Law Dork, partly because I don’t want to waste time reading Trump’s crappy motions before Chutkan, and partly because it’s a pain in the ass trying to copy and paste from the online documents. But also because this is an interesting insight I hadn’t gotten anywhere else:

First, Trump’s lawyers argued in the Monday filing that the indictment “seeks to criminalize core political speech and advocacy that lies at the heart of the First Amendment.” In a subsection titled, “The First Amendment Does Not Permit the Government to Prosecute a Citizen for Claiming That the 2020 Presidential Election Was Stolen,” Trump’s lawyers argued just that:

I don’t need to read the motion to know what this is. Trump raised this hue and cry when he was indicted, and Jack Smith took pains to point out Trump was being charged for what he did, not what he said. (Yes, some actions are speech, but that doctrine doesn’t begin to apply to the charges in the indictment.) Law Dork sums up the problem for Trump rather nicely:

This is a weird section of the brief, because most of it — as shown from some of the basic First Amendment cases cited throughout — is boilerplate discussion of free speech protections. The problem, though, is that the brief doesn’t follow the indictment to its actual charges.

I’ll spare you the discussion of the actual charges. It’s worth reading, but I’m not going to repost the entire article here.

This is a fatal error, though. It’s a lot of hand-waving meant to get something, anything, in front of the appeals court. The throw-it-against-the-wall-see-what-sticks approach. Squid ink is another good metaphor. But Chutkan and the appeals courts, even up to the Supremes (who never bailed Trump out in his election challenges) will not be confused, or impressed, by it.

As I never get tired of saying: Trump has shitty lawyers.

Nonetheless, that claim is actually their strongest argument.

QED.

The second argument advanced by Trump’s lawyers is the weakest, and most bizarre. They argued that impeachment — a legislative function — somehow triggers the Double Jeopardy Clause — which addresses criminal law — presumably because we use words like “trial” and “acquitted” in both impeachment and criminal law.

At this point we’re just dealing with shit-on-a-stick. There’s absolutely no case law supporting this argument, and plenty of law and history as a grounds to reject it. It’s just a stab at the ultimate “King’s’X,’” because impeachment is a legislative process that lies outside the judicial criminal process. That it does not create double jeopardy is practically horn book law.*

Finally, for the due process argument, the lawyers asserted that “Trump could not possibly have received fair notice that his conduct was supposedly criminal when he performed it” because he is the first former president to face such charges despite the fact that other elections were disputed.

This is where you think someone should ask Trump’s lawyers to surrender their law licenses because they clearly don’t know how to use them. I do not say that lightly.

This, by the way, is just one motion: dismissal of the charges on constitutional grounds. There is another for dismiss on statutory grounds; a third seeking dismissal on grounds of selective and vindictive prosecution (the “Hunter Biden envy motion), and a fourth seeking to strike “inflammatory allegations” from the indictment.

I actually look forward to the DOJ responses. And I wonder if the judge will set any for hearing, since there doesn’t seem to be any evidence supporting any one of them. Probably she’ll hear arguments on all four at once, before tossing them in the garbage.🗑️ 

This is where I remind you Bradley Moss thinks there’s a First Amendment challenge to be made; but these motions aren’t making it. And despite the best efforts of Aileen Cannon (who is not the judge here), the court has no obligation to make those arguments for the defendant.

And, again, this is not a delay tactic. The court set the deadline for motions like this. Such motions (though not such bad ones) were expected. None of this means the trial won’t start in March, 2024.

*A legal term of art meaning the principle is so well-established it’s foundational.