In the past six weeks, Trump has filed four motions to dismiss his election interference case in DC, as well as throwing a dozen other miscellaneous motion-shaped wrenches in the works as part of a transparent attempt to get his March 4, 2024 trial date postponed.
Last week the government requested to combine its response to Trump’s motion to dismiss on statutory grounds and his motion to dismiss on constitutional grounds into one document to “avoid the repetition and cross-referencing that pervades the defendant’s separate motions.” Prosecutors sought leave to exceed the 45-page limit for a single reply brief, promising that the combined document would “come in well under the 90 pages to which the Government would be entitled if it filed separate opposition briefs.”
Trump opposed the motion, because his lawyers are assholes. Ostensibly, he didn’t want to allow prosecutors to game the system by spending 60 pages attacking his (idiotic!) constitutional arguments. Judge Tanya Chutkan granted the government’s request, sighing in a minute order that “the discussion of each Motion therein shall not exceed 45 pages.”
In the event, the government’s reply is 79 pages, 15 of which are taken up with the caption and tables of contents and authorities. Because Trump’s motions were gobbledygook, and no one needed to spend 90 pages refuting them.
The government first tackles the claim that the indictment must be dismissed because it failed to allege that Trump violated the statutes at issue. In the defendant’s telling, he had a First Amendment right to try to overturn the election by dint of fake electoral certificates. And anyway, all he did was make words, which can’t be a crime because have you people even heard of the FIRST AMENDMENT?
In response, the government points out that Trump was not indicted for spewing lies about rampant election fraud. He was indicted for conspiring to defraud the United States, obstruct an official proceeding, and violate the right to vote and have one’s vote counted by substituting fake electoral votes for real ones and stopping Congress certifying the winner of the 2020 election. And the First Amendment protects the right to shout ridiculous lies, but the fact that “I’m a broke Nigerian prince, send me cash” is just words won’t save you from a fraud charge.
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Trump also made a bizarre argument that he was just lobbying Congress, in keeping with his God-given right to petition the government.
“That argument fails because the indictment alleges not lobbying or political advocacy, but instead that the defendant engaged in a multifaceted conspiracy aimed at overturning the results of the presidential election by targeting deceit at the federal government function,” the special counsel scoffed in response.
Trump’s constitutional arguments come in for similar disdain — and clock in at considerably less than 45 pages. In chief, he argued that he can’t be arrested because he was already impeached, and uh, you know DOUBLE JEOPARDY.
The Impeachment Clause specifies that “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” But Trump argued that he’s not a “party convicted,” and adopting the obverse assumption, he cannot now be tried in a court of law.
But, as the government notes: impeachment is a civil remedy, and has nothing to do with criminal jeopardy; Trump was impeached for incitement, not conspiring to obstruct Congress, and those things are not the same; Congress and the Justice Department are separate sovereigns, and thus the charges are parallel, not overlapping; and, Trump’s own Republican allies said that they were voting against impeachment because they thought they lacked jurisdiction to impeach an ex-president, not based on the validity of the charge.
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On top of which, that’s not how anyone has ever understood the Impeachment Clause to function, looking back to the days of the Founding Fathers — although perhaps if they’d consumed a bucket of paint thinner and spent 1,000 hours mainlining Steve Bannon’s podcast, they’d have come to a different conclusion.
The special counsel requests that Judge Chutkan designate the double jeopardy claim “frivolous,” which would block Trump from an immediate interlocutory appeal under DC Circuit precedent.
“The defendant’s wholly meritless double-jeopardy claim should not, therefore, divest this Court of jurisdiction in a manner that risks delaying the trial,” the prosecutors concluded.
On the plus side for Trump, he did win a partial victory on his motion to extend discovery subpoena deadlines under Rule 17(c). The original cutoff was tomorrow, November 9, 2023, but Trump asked for an extension to February 9, 2024, just three weeks before the scheduled start of this trial. That was never going to happen, of course. But Judge Chutkan did give him two weeks extra to get his homework done, extending the deadline to November 27.
And that’s probably the biggest win he’s going to get out of this trial court.
US v. Trump [DDC Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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