Former President Donald Trump’s legal team forged ahead with its bid to toss out the four-count 2020 election subversion indictment against him, just one day after prosecutors’ scathing evidence dump against him was unsealed.
Trump’s team cited a June ruling from the Supreme Court in Fischer v. United States that curtailed the scope of the obstruction of an official proceeding charge used in the indictment against him.
“The Superseding Indictment stretches generally applicable statutes beyond their breaking point based on false claims that President Trump is somehow responsible for events at the Capitol on January 6, 2021,” his team wrote in a motion to dismiss based on statutory grounds.
“The Special Counsel’s Office seeks to assign blame for events President Trump did not control and took action to protect against.”
The Supreme Court ruled in the Fischer v. United States case that prosecutors need to prove individuals attempted to tamper with or destroy documents if they use the obstructing an official proceeding charge. Liberal Justice Ketanji Brown Jackson had joined her conservative peers in that opinion.
Its decision has threatened to upend scores of the Justice Department’s prosecutions in Capitol riot cases.
“The Special Counsel’s Office cannot establish the required nexus between alleged obstruction and any ‘evidence’ used in the certification proceeding, or that anyone acted with corrupt intent,” Trump’s lawyers argued in their 14-page filing.
Two of the four charges Trump is facing from Smith pertain to that — one count of obstructing an official proceeding and another count for conspiring to obstruct an official proceeding.
Immunity battle
In tandem with its effort to nix the election subversion indictment based on the Fischer v. United States case, Trump’s team is also looking to undercut it based on the Supreme Court’s separate July decision on presidential immunity.
The Supreme Court held that presidents enjoy “absolute” immunity when it comes to official conduct but remanded the question of whether that applies to the election subversion case back to the lower courts.
Smith’s team had lodged a comprehensive 165-page motion last week arguing that the high court’s decision on immunity does not apply its indictment against Trump.
Presiding US District Judge Tanya Chutkan on Thursday gave Trump’s lawyers until Nov. 7 — two days after the election — to file their response to that blistering motion from Smith’s team that had elicited the 45th president’s fury.
That immunity motion from Smith unfurled mounts of evidence the government compiled against Trump, largely rehashing details that were previously known about his efforts to thwart the 2020 election.
“Democrats are Weaponizing the Justice Department against me because they know I am WINNING,” Trump raged on Truth Social.
“The DOJ has become nothing more than an extension of Joe’s, and now Kamala’s, Campaign. This is egregious PROSECUTORIAL MISCONDUCT, and should not have been released right before the Election. The Democrat Party is turning America into a Third World Country.”
Trump’s team had fought hard in court to delay the public release of that court filing until after the election, but Chutkan ultimately green-lighted the disclosure of a redacted version of it Wednesday, prompting Trump’s fury.
“This was a weaponization of the government … and released 30 days before the election,” Trump told Ali Bradley of NewsNation on Wednesday. “My poll numbers have gone up instead of down. It is pure election interference.”
Trump’s indictment in the matter had first been unsealed back in August of last year, but his lawyers managed to delay proceedings via the immunity challenge. Smith rolled out an overhauled indictment back in August of this year to adjust for the Supreme Court’s ruling.
If Trump manages to win the Nov. 5 election, he will have tools at his disposal to potentially quash the case, including by possibly ordering the Justice Department to nix it.
Trump is also facing a 10-count Georgia election tampering indictment that is effectively on pause due to a challenge against Fulton County District Attorney Fani Willis.
A 40-count indictment over allegations that Trump illegally hoarded classified documents was thrown out over the summer, but Smith has been fighting to revive it.
The 45th president has denied wrongdoing and pleaded not guilty to all charges pending against him.
