Donald Trump had been promising he was going to protest the Washington, D.C. federal case around the 2020 election fraud by filing a motion to dismiss based on "vindictive prosecution." In the midnight filing Tuesday morning, he made good on the threat.
The court filing, uploaded by Lawfare's Anna Bower, was the fourth in a series of pre-trial motions that were required to be submitted by the end of the day.
"The core conduct alleged in the indictment relating to the presentation of alternate electors had a historical basis that dates back to 1800 and spans at least seven other elections," the filing begins. "There are no other prosecutions in American history relating to these types of activities. The allegations in the indictment involve constitutionally authorized activities by President Trump as Commander In Chief, as well as speech and expressive conduct by the First Amendment."
"Given this context, it is no surprise that in the months following the 2020 election, senior government officials rejected an investigation of President Trump as unfounded and potentially unconstitutional," the filing continues. Some of those government officials were the ones are now standing beside him as co-defendants in Fulton County, Georgia. His own government was the one claiming he did nothing wrong. The Office of Legal Counsel decision, which is nothing more than a DOJ policy, says an investigation of a sitting president shouldn't be done.
"However, biased prosecutors pursued charges despite the evidence, rather than based on it, with one prosecutor violating DOJ rules and ethical norms by forecasting the investigation in a television interview on '60 Minutes,'" the filing rants. "Even the Attorney General felt 'boxed in' by the onslaught. Unable to address criticism from President Trump through lawful means—while facing public pressure from a House committee investigation not confined by a burden of proof or the same due process standards, i.e., the same congressional investigation that failed to preserve a huge amount of exculpatory evidence..."
Trump and his allies have claimed that the Jan. 6 committee trashed any and all evidence used in their hearings. Rather, all of the exhibits, interviews and information is uploaded to a website. While there are some redactions, the Justice Department was given the full report. A fact check says that the claim is false.
The filing goes on to say without evidence that President Joe Biden was behind the demand for the Justice Department to "pursue the nakedly political indictment." They also claim that it was politically motivated because it came less than a week before Trump announced his candidacy. In fact, Trump only announced his candidacy because the 2022 midterms were over. The DOJ didn't announce its investigation because of a blackout around the 2022 midterm elections. Furthermore, there is no proof the government, much less the president, demanded anything "nakedly" relating to Trump.
An Aug. 2022 report from The Guardian said, "In communications reviewed by the Guardian, the source indicated Trump needed to announce because politically it would be harder for the US Department of Justice (DoJ) to indict a candidate for office than a former president out of the electoral running."
According to the report, announcing early is part of his legal strategy as a preemptive strike against litigation.
Trump's lawyers then claim that calling Jack Smith to be a special counsel was to "insulate Biden and his supporters from scrutiny of their obvious and illegal bias." But Trump has spent the past year since Smith was nominated claiming he is politically biased. If there was bias from the Biden administration, Trump also appears to be admitting the case would be just as insulated from their "legal bias."
The legal filings' sources include "leaks from participants in the investigation." There are no citations or references in the filing or footnotes to the leaks, who they are, where the leaks were cited, where they came from, or what they said that was damaging to Trump. In fact, the word "leaks" never appears again in the court document.
The court filing goes on to support its case by citing President Biden's political attacks and press conferences as part of the Justice Department strategy. The documents also refuse to refer to Biden as President in the text, only using the title in footnotes where the website title appears.
Trump's attacks in the filing that accuse the DOJ of "vindictive prosecution" appear only to cite President Biden and not the attorney general or special counsel as part of that vindictiveness.
It does, however, bring attention to Trump's way of dominating the U.S. government when he was president, using it as a tool of weaponization against his perceived enemies.
Among the reports disclosed since his leaving office is the disclosure that his former lawyer, Michael Cohen, was targeted by the Bureau of Prisons and the DOJ with an illegal demand for his release. The government still refuses to turn over documents it has related to the request but has finally revealed that those documents do exist. In fact, 480,000 documents exist.
Reports were also released that Trump used the Internal Revenue Service to go after FBI foes Andrew McCabe and James Comey, as well as Cohen.
David Alan Sklansky, a Stanford University criminal law professor and former federal prosecutor, said earlier this month the dismissal demand could be a long shot for Trump.
“It’s a high bar, and Trump doesn’t appear to have any chance of meeting the requirements,” Sklansky told The Center Square.
You can read the full filing from Trump's lawyers below or at the link here.
