By Petr Svab
Former President Donald Trump has several viable avenues to have the Supreme Court throw out federal charges he’s facing for his efforts to challenge the results of the 2020 election, several lawyers and Constitution experts told The Epoch Times.
His best case is that the charges encroach on his First Amendment rights, but he might also successfully assert presidential immunity or argue the law was impermissibly stretched by prosecutors, the experts said.
President Trump was charged by Special Counsel Jack Smith on Aug. 1 with obstructing electoral vote counting by Congress on Jan. 6 and conspiring to do so in order to stay in power.
The conspiracy was allegedly carried out by spreading false claims that fraud and illegalities swayed the election outcome and using those false claims in attempts to convince various officials to overturn the results.
President Trump’s lawyers have launched a barrage of motions to have the charges dismissed on constitutional grounds, statutory grounds, due to presidential immunity, and for malicious prosecution. While some of the claims are weak at best, others appear persuasive, according to the experts.
In practice, however, President Trump’s arguments will need to convince his judge, the appeals court, or, in the final instance, the Supreme Court.
The experts predict that the District of Columbia federal judge on the case, Tanya Chutkan, will almost certainly deny all the motions to dismiss. On Dec. 1, she indeed denied about half of them. They also acknowledged that the arguments would likely encounter resistance in the D.C. Circuit Court of Appeals, given its political leanings.
President Trump’s best chance will be in the Supreme Court, they contend.
Free Speech Argument
President Trump’s lawyers have asserted that the indictment runs afoul of the First Amendment by trying to criminalize political speech and advocacy.
“The prosecution seeks to install itself as America’s censor, with roving authority to criminally prosecute all who speak out against its approved narratives,” the lawyers wrote in a Nov. 22 brief.
“The prosecution has no such mandate. Accordingly, the indictment is unconstitutional on its face and must be dismissed.”
If prosecutors can claim that President Trump’s efforts to reverse election certifications amounted to a conspiracy to obstruct the government, then people advocating against other government actions, such as COVID-19 lockdowns or mask mandates could also face such charges, the lawyers argued.
The prosecutors retorted that such hypotheticals wouldn’t apply “absent additional information about the conduct and mental state of the individuals.”
But if that’s the case, the defense lawyers responded, it would give the government a license to probe said individuals for such additional information—”inquire into their mental state, knowledge, and associations.”
“The implication is that to get that information, investigation is necessary. Under the prosecution’s misconceived legal theories, then, every public statement a constituent makes to a member of Congress concerning a hotly debated topic is a license to open a federal criminal investigation into the person who made it—unless it is indisputably true,” the lawyers said.
“That, of course, contradicts the very nature of hotly debated topics, where the truth is, by definition, in dispute.”
This argument appears “sound” to Rob Natelson, one of America’s preeminent constitutional scholars who’s written extensively on the original meaning of the Constitution and the First Amendment in particular, including for The Epoch Times.
“Lying is protected by the First Amendment, except in a few cases such as fraud, lying to law enforcement, and defamation,” he said.
“It has to be so: Otherwise, as Trump’s lawyers claim, every statement would be open to investigation into the speaker’s motives. The effect would be, as the Supreme Court says [in previous cases], a severe ‘chilling effect’ on speech.”
The argument that the basis for the charges against President Trump “appear to primarily stem from his political activity” belongs to the “stronger” ones his lawyers put forward, according to Horace Cooper, a senior fellow with the National Center for Public Policy Research who formerly taught constitutional law at George Mason University.
“At least the Supreme Court is reticent to allow a charge based on constitutionally protected behavior,” he said.
Conspiracy, by law, doesn’t require any crime to actually be committed. At least two people simply need to agree to do something illegal and then at least one of them needs to engage in at least one physical act—however minor or innocuous—in furtherance of the plan.
In the Trump case, however, it appears to Mr. Cooper and others that the entirety of the alleged conspiracy and even its objective were in fact legal.
“They have identified no specific behavior in and of itself in terms of the president’s advocacy that constitutes illegal behavior,” Mr. Cooper said.
The prosecutors argue the activity became illegal as it was done in bad faith.
But the real-world result seemed to be the same.
“There is no distinction … between a person doing exactly that without a bad motive,” Mr. Cooper said.
To have the trial hinge on whether President Trump, in the deep recesses of his mind, truly believed his claims about the election, is troubling to Mr. Cooper.
“I’m really concerned about the idea that we know the mindset of a person,” he said.
The strength of one’s subjective beliefs is nigh impossible to gauge, he said.
“The court is not going to give credence to the argument that the perception of Donald Trump and his team, even if you show at some period that it appears to waver, that that covers all of the legally protected behavior,” he said.
Judge Chutkan’s rejection of the First Amendment argument was so blanket that it rendered it “very weak” he said.
“She would have been better served by saying that there is behavior besides communication [protected by the First Amendment] that would constitute the conspiracy to act here,” he said.
Instead, the judge argued that “the crimes Defendant is charged with violating may be carried out through speech alone.”
Regardless of whether President Trump’s election challenges were illegitimate, the legal standard pursued by the prosecutors is dangerous, suggests a career attorney who has gained popularity analyzing the Trump cases through his anonymous X account “KingMakerFT.”
“It is an invitation to turn this country into a banana republic where the losing side, if it speaks out, if it tries to right a wrong, if it tries to argue that there was corruption in the election itself, they could put you in jail—if you lose, you go to jail,” he told The Epoch Times.
The lawyer, who retired several years ago after a 45-year career, asked for his real name to remain withheld.
Presidential Immunity Argument
President Trump’s lawyers have argued that his actions fell within the bounds of his presidential duties and thus can’t form a basis of a criminal prosecution.
The Supreme Court has ascribed the presidency broad legal immunity, but only from civil suits, not criminal charges.
“If the argument is that the mere fact that the president undertook this activity immunizes it from any legal scrutiny, the court has not been willing to go that far in a criminal case,” Mr. Cooper said.
“If, instead, the argument is that the activities were those of a constitutional officer and within the ambit of authority that the Constitution allows and therefore cannot be an element for a crime, I think that’s a much more robust argument.”
Judge Chutkan denied this argument, opining that criminal activity is automatically not within the bounds of presidential duties and presidents, much less former presidents, thus don’t enjoy immunity from criminal prosecution.
But that sidesteps the issue, according to KingMakerFT.
“If it’s within presidential duties it can’t be criminal … by implication, at least that’s the argument,” he said.
The issue goes back to the criminal intentions the prosecutors need to prove. Courts have been reluctant to probe motivations of government executives on matters that fall within their duties, he said.
The motivations of the executive lose relevance in such cases, Mr. Cooper said.
“If you are an office holder, you do not get struck of your status as an office holder because your actions are intended to effectuate your either continuing to stay in office or your attempt to be reelected,” he said.
“The Justice Department is creating a distinction that almost is completely without merit.”
Mr. Cooper provided the example of President Joe Biden’s pronouncement of support for Israel.
“Did he do that because that’s America’s national security [interest]? Did he do that because he says that when he was a young man, he got a chance to meet with the Prime Minister of Israel? Or did he do it because he sat down with his advisers and realized that this is a chance for him to bolster his support within the Jewish community? Did he do that because he sat down with his wife and she just simply said, ‘I will divorce you if you don’t make this statement?’” he asked.
“A court is not going to attempt to drill down into that decision-making if in fact the president has the lawful authority to make the kind of pronouncement that Mr. Biden did.”
Judge Chutkan’s opinion, he says, “fails to give the space for free decision-making that the Constitution does in fact give the executive.”
What the judge could have done was to parse through the indictment for actions that could be argued were within presidential purview and then see if what’s left is enough to sustain the charges.
“She didn’t do that and I think that makes her dismissal decision weaker,” Mr. Cooper said.
Stretching the Law Argument
Lawyers for President Trump have argued that the prosecutors are trying to squeeze his actions into criminal statutes that shouldn’t apply.
The first count falls under Section 371—a conspiracy to defraud the government. But the law primarily deals with fleecing the government for money.
The prosecutors are using an interpretation of the law that also covers obstructing the government. President Trump’s lawyers, however, provided examples that suggest the Supreme Court has framed such obstruction more narrowly.
It’s not enough to show President Trump made false claims, the defense lawyers say. It will be necessary for the prosecution to prove he conspired “for the purpose of impairing, obstructing or defeating the lawful function” of the government through “trickery or deceit.”
The prosecutors argued that the alternate elector slates were deceitful because the documents purported to be properly certified by state officials when they weren’t.
But that’s a misleading portrayal of the facts, according to KingMakerFT.
Under the Electoral Count Act of 1887, states need to resolve challenges of results within 35 days of the election. If they can’t, they can still produce a new slate of electors, but it’s up to Congress to decide whether to count the new slate or the original one.
State laws, however, dictate when electors must meet to cast their votes. If a challenge of the results succeeds after that date, there’s no procedure to appoint new electors. Courts may even toss such challenges for lack of remedy alone.
To resolve the conundrum, in 1960, lawyers for the Democratic Party came up with a creative solution. Although Hawaii was certified for Richard Nixon, Democrat electors also met and cast their votes for John F. Kennedy. When Mr. Kennedy’s election challenge succeeded, Congress used the alternate slate to count Hawaii’s votes.
The Electoral Count Act makes room for the two elector slates eventuality, directing Congress to open not just the electoral votes certified by state officials, but also “papers purporting to be certificates of the votes of electors.”
It was in this context that lawyers on President Trump’s campaign team arranged for alternative elector slates in several states. Just as the one in Hawaii, the alternative slates purported to be duly certified, even though they weren’t—but “that really was not deceptive as a matter of law,” KingMakerFT said.
It’s not that rare for a legal document to include technically untrue statements. Prosecutors, for instance, routinely let offenders plead to lesser charges even though the facts of the case don’t necessarily reflect that charge.
Speeding tickets, for instance, are often downgraded to parking violations. The defendant, under oath, tells the judge he’s guilty of the downgraded offense even though in truth he’s not. That doesn’t mean, however, that the court is deceived.
“Everybody knows what’s going on,” KingMakerFT said.
In the Trump case, it was also apparent the alternative slates weren’t the original ones—for one, they had no certifications by state officials attached.
“The Democrats got certified. The Republicans wanted to be certified by Congress; sent their papers up, hoping Congress would pick them,” he said.
The prosecutors argue that the alternate slates were an attempt to create controversy where there was none. But the Trump team had lawsuits pending in the contested states, KingMakerFT said.
The prosecutors argued the lawsuits themselves were a mere pretext.
But that goes back to probing President Trump’s motivations. The prosecutors would need to show the lawsuits were in fact frivolous, he said.
President Trump’s lawyers, however, present an even broader issue—they say the goal of the supposed conspiracy wasn’t actually illegal.
“Political advocacy to public officials—even if the one lobbying them makes claims on widely disputed issues that federal officials deem to be ‘false’—does not constitute obstruction or interference within the meaning of § 371,” they said.
“You can’t conspire to not to break the law,” Mr. Cooper said.
“The crime has to be palpable and real. It has to be something that you could say, ‘Anyone who does ‘X’ successfully will have committed this crime.’”
KingMakerFT agrees.
“The facts laid out in the indictment do not describe what’s been, up to now, considered impeding or obstructing Congress, as opposed to mere political advocacy,” he said.
The prosecutors alleged in the indictment that the defendant tried to convince Vice President Mike Pence to refuse electoral votes from several contested states and delay the counting of the votes by Congress, which would violate the Electoral Count Act.
But the indictment suggests that the Trump team operated under a legal theory that the Vice President had the power to do so.
The theory may have been wrong, but “it’s not against the law to make crazy proposals. Proposals that have no chance of winning,” KingMakerFT said.
The prosecutors could argue that most legal experts agree that the vice president didn’t have such authority. But there was at least some debate on the issue among experts, according to Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation and an expert on election law.
“It’s a matter of dispute how much authority the vice president has when it comes to certification process,” he said.
“I just think they are on a very shaky ground, constitutionally, in this prosecution.”
“I flatly reject that if Pence exercised what he perceived to be discretion to not accept those [electoral votes] that that in and of itself would have constituted a crime,” Mr. Cooper said.
The prosecutors argue that President Trump used lies to persuade Mr. Pence, but there’s no law prohibiting lying to the vice president to convince him to reject electoral votes, KingMakerFT said.
“Crimes have to be specific and spell out what it is that’s illegal.”
Due Process Argument
President Trump’s lawyers have raised the issue of “fair notice.”
The Constitution’s Due Process clause requires law to be clear enough that people have a fair chance to understand what behavior crosses legal lines.
The same principle is also sometimes interpreted to preclude novel interpretations of law.
“It’s a fundamental principle of criminal law that you don’t put people in jail on novel theories, where the person charged has no prior notice that what he’s about to do is criminal,” KingMakerFT said.
“When we’re talking about a former president of the United States, it is not a good time to decide to use a novel legal theory,” Mr. Cooper said.
He noted that it was Jack Smith, in his role as a federal prosecutor, who attempted to put in jail a former governor of Virginia on a novel legal theory, only to be unanimously overturned by the Supreme Court.
The court affirmed that the specific behavior Mr. Smith targeted wasn’t clearly marked as illegal and “if Congress wants that behavior to be criminalized, it needs to pass the law itself,” Mr. Cooper said.
“The same is true here.”
President Trump’s lawyers argued that there have been attempts to overturn election results in the past with no indication that such activity was illegal.
Mr. Cooper pointed to the effort in 2016 to convince electors bound to cast their votes for Donald Trump to cast them instead for his opponent, former Secretary of State Hillary Clinton. There was no suggestion the effort was illegal.
Judge Chutkan rejected this line of reasoning.
“In none of these earlier circumstances was there any allegation that any official engaged in criminal conduct to obstruct the electoral process” or that the conduct “was in furtherance of a criminal conspiracy or designed to obstruct the electoral process,” she opined.
But that’s a “circular argument,” according to Mr. Cooper, because it suggests that what President Trump did was illegal because prosecutors allege it was illegal.
Judge Chutkan argued that perhaps in prior analogous cases the perpetrators “escaped prosecution,” but that’s just because prosecutors have discretion to bring charges in some cases and not others.
“The mere absence of prior prosecution in a similar circumstance would not necessarily mean that Defendant’s conduct was lawful or that his prosecution lacks due process,” she said.
If precedent is always necessary, no novel crime could ever be prosecuted, she opined.
It’s a valid point, KingMakerFT said.
“But if you’re going to go way out on a limb and develop totally new theories of criminality that have never been prosecuted against anybody in the past, you better be relying on a statute that’s plain,” he said.
“Because if you construe these statutes narrowly, which the courts are prone to do, what’s been charged is not really a crime.”
Weak Arguments
President Trump’s lawyers also asked to have the charges dismissed based on the Impeachment Clause and principle of double jeopardy as well as for malicious prosecution.
Those arguments are unlikely to succeed, the experts said.
The Impeachment Clause says that penalties for impeachment are limited to removal from office and a ban from holding a futuren office, but “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.”
Because the clause only talks about “the party convicted,” it suggests that the party acquitted should be immune from criminal prosecution for the same underlying behavior—similar to the principle of double jeopardy, President Trump’s lawyers argued.
U.S. District Judge Tanya Chutkan. (Administrative Office of the U.S. Courts via AP, File)
“Basically, it’s a constitutional argument based on what the Constitution doesn’t say,” KingMakerFT said. “That’s kind of a stretch.”
Mr. Natelson voiced a similar sentiment.
“In effect, the Trump lawyers are saying that the Constitution’s ratifiers understood the document as abolishing all criminal prosecutions for anyone acquitted in an impeachment controversy,” he said.
“My particular specialty is the Founding Era, and I know of no evidence that the ratifiers understood the Impeachment Clause as abolishing liability for crimes for those acquitted in impeachment proceedings.”
Judge Chutkan also shot down the argument. The word “nevertheless” in the clause suggests that the intent was to make clear that double jeopardy doesn’t apply to impeachment convicts and that they can still be charged for the same conduct in criminal courts, she said.
Both Mr. Cooper and KingMakerFT acknowledged that motions to dismiss for malicious prosecution are almost impossible to win.
The defendant needs to show evidence prosecutors acted inappropriately in bringing the charges.
“Getting that kind of information, I think will be a herculean task,” Mr. Cooper said, because courts are “reticent to force the prosecutors” to disclose their internal communications and “to have prosecutors testify about what led to their decision to prosecute.”
Path Through Courts
Mr. Cooper, Mr. Von Spakovsky, and KingMakerFT all predict that Judge Chutkan will be resistant to President Trump’s arguments.
“My reading of the District Court judge is she’s not buying anything Trump is raising,” KingMakerFT said.
“She shouldn’t be on this case,” said Mr. von Spakovsky.
“She should have recused herself because of prior statements she has made critical of Donald Trump which showed her bias. I don’t think she has any interest in rationally and, in a nonpartisan way, evaluating these constitutional arguments. She made it very clear before she ever got this case that she thought Donald Trump should be in jail.”
Mr. Cooper, however, suggests the judge’s approach may change, depending how the appeals court and the Supreme Court handle the case.
President Trump has already appealed Judge Chutkan’s gag order that severely limits him from publicly commenting on the case.
“If the gag order is refined or restricted, or even overturned, it would put the district court judge on notice that she’s being watched very carefully,” Mr. Cooper said.
That would “absolutely” affect her behavior, he said.
“Judges, actually, would like at some point to become appellate court judges. They would like, at some point, to become Supreme Court Justices. Having a record as a crank that has to be regularly overturned stops your career.
“And in fact, another function is that in subsequent cases it will be a lot easier to get an appeal overturn when we’re dealing with a judge that isn’t happy to follow existing rules,” Mr. Cooper said.
The D.C. Circuit appeals court leans left, Mr. von Spakovsky said, noting that Democrats packed the court to achieve that result.
That doesn’t mean President Trump wouldn’t get a fair shake, KingMaker FT said.
“It largely depends on what [3-judge] panel he draws as to whether he has a shot.”
President Trump’s lawyers filed a notice on Dec. 5 indicating he will appeal the ruling that denied his motion to dismiss based on presidential immunity. The other motions, however, will need to wait until after the case concludes at the district level.
“The real question is what part of this case gets to the Supreme Court and when,” Mr. Cooper said.
“If this case has to wait until after all the trial matters have been resolved and then be addressed on appeal, I predict that it’s highly likely that the court is going to issue a ruling that there was … not much justification on the part of the prosecutor. The real question is what damage is done to America if we have to wait until that occurs?”
