“Trump’s lawyers argue DC fed’l charges unconstitutional, should be tossed”

cheap speech

Chris Geidner at Law Dork:

In a late-night filing Monday, Donald Trump’s lawyers argued that the special counsel’s D.C. federal case against Trump should be dismissed on multiple constitutional grounds.

The motion primarily relies upon an argument that there can be no absolute truth about who won the 2020 election and so, therefore, Trump can’t face criminal charges stemming from his advocacy advancing claims that were made without evidence that the election was stolen.

The motion was one of four filed by Trump’s lawyers as Monday came to a close, a deadline for motions seeking to have the case dismissed.

In the constitutional arguments filing, the lawyers stated from the outset that Trump continues to believe “that fraud and irregularities pervaded the 2020 Presidential Election.”

The lawyers went on to argue — not only despite that but, in part, because of that — that there are three constitutional reasons why U.S. District Judge Tanya Chutkan should dismiss the case brought by Special Counsel Jack Smith….

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:

Claims about the integrity of the 2020 Presidential election—including claims that the election was “rigged” and/or “stolen,” or that fraud and irregularities tainted the outcome in certain States or across the Nation—implicate all the fundamental First Amendment principles discussed above. They constitute (1) core political speech (2) expressing a specific disfavored viewpoint (3) on matters of enormous public concern (4) that relate to a widely disputed historical, social, and political question (5) that is not readily verifiable or falsifiable. Thus, they lie at the heartland of the First Amendment’s protection, and the federal government may not dictate whether such claims are true or false—nor prosecute the purveyors of the allegedly “false” views.

Further still, they continued: “This is especially true because claims that the 2020 Presidential election was ‘rigged’ or tainted by fraud and irregularity … do not involve ‘easily verifiable facts.’”…

I discuss these First Amendment issues specifically in my Cheap Speech book (out in paperback next month).

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