Trump’s Motions to Dismiss Things That Aren’t the Charges Against Him

Last night, Trump just met the deadline for filing motions to dismiss his January 6 indictment.

I’m going to lay out what he filed. I’ll review them at length in follow-ups. Here’s a handy table to understand them.

Motion to Dismiss on Constitutional Grounds: This 31-page motion cites Mollie “Federalist Faceplant” Hemingway. But it doesn’t actually mention the charges in the indictment. Having not described how his (and his fake electors’) false claims were charged as conspiracy to defraud the government, having not explained how orders to Mike Pence and the incitement of his mob obstructed the vote certification, having not acknowledged efforts to reverse vote counts in the states, Trump then claims he’s being prosecuted for First Amendment protected speech.

In a section that significantly overlaps with his Motion to Dismiss on Absolute Immunity grounds, Trump claims the failed January 6 impeachment prevents him from being tried on substantially different crimes.

Motion to Dismiss on Statutory Grounds: This filing moves to dismiss the indictment for failure to state a claim, a motion similar to dozens if not hundreds that have failed for January 6 defendants.

Trump moves to dimiss the 18 USC 371 charge against him because, he claims, all the lying alleged in the indictment (which he all but concedes was false in the MTD on Constitutional Grounds) didn’t involve deceit. He even argues that because there was “a clear difference in form” in the fake electors submitted to NARA, no deceit (or forgery) was involved!

Interestingly, Trump says that his false statements to Congress under 18 USC 1001 (which, he notes, was not charged) would be exempted as advocacy. This ignores the abundant litigation finding the vote certification to be an official proceeding.

Trump’s challenge to 18 USC 1512(c)(2) largely involves completely misrepresenting the finding of Robertson, which I wrote about here. I don’t think Trump even engages with the “otherwise illegal” standard applied to Thomas Robertson. He definitely doesn’t engage with the standard that right wing judges want to adopt: unlawful personal benefit.

Trump’s attack on 18 USC 241 is particularly curious. In spite of the fact that his own DOJ was taking actions against false election claims online in 2020, he argues there was no court decision, in 2020, saying that it would be illegal (the Douglass Mackey prosecution, charged by a guy who had been one of the Bill Barr’s top deputies, has since done so). More curiously, Trump doesn’t even seem to understand that all his other attempts to prevent Joe Biden votes from being counted are also overt acts that support this prosecution.

Motion to Dismiss for Selective and Vindictive Prosecution: This is mostly a political document. It points to the scant evidence that Joe Biden was behind this prosecution. It claims that this indictment was retaliation for Trump’s complaints about his stolen document indictment. He cites his own attacks on Hunter Biden (citing Congressional press announcements, not any of his own posts, though he does include two of his own other posts on more general attacks), including one that post-dates this indictment (which was charged on August 1).

4 See Hunter Biden, Burisma, and Corruption: The Impact on U.S. Government Policy and Related Concerns, U.S. Senate Comm. on Homeland Security and Government Affairs and U.S. Senate Comm. on Finance (Sept. 22, 2020),, at 3.

5 See Second Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (May 10, 2023),, at 5, 9.

6 See Third Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (Aug. 9, 2023),, at 2. [my emphasis]

This ploy is interesting, given the likelihood that Hunter Biden will file a parallel selective prosecution motion.

He also cites two articles showing that Garland didn’t open an investigation into Trump right away as proof that he was unfairly targeted. I suspect Trump may try to call Steve D’Antuono, whose actions are described in one of them (the famous and problematic Carol Leonnig story), to talk about his own resistance to opening the investigation. This motion doesn’t do the least amount of things it’d need to do to actually get a hearing (in part because the evidence all shows the opposite of what Trump claims). But he would have fun if he somehow did get a hearing (and if he does not but Hunter does, he’ll use Hunter’s efforts to renew the demand).

Motion to Strike Inflammatory Allegations: This is an attempt to eliminate the language in the indictment showing how Trump mobilized his mob because he isn’t charged with mobilizing the mob (as DOJ already laid out, that is one of the means by which he obstructed the vote certification). This is likely tactical, an attempt to remove one of the primary means by which he obstructed the vote certification to make his 18 USC 1512(c)(2) argument less flimsy.

108 replies
    • Peterr says:

      I wonder how much Trump himself influenced this document. The summary above certainly paints that picture. “I want you to take this position, and dress it up in nice legal language . . .” Either that, or Trump simply has very poor lawyers.

      Either way, it’s a great example of what you do when the facts and the law are both against you: pound the table.

      • emptywheel says:

        I feel like he definitely dictated the selective prosecution one. It’s short. It doesn’t come near meeting the bar to be seriously considered. It may have been filed after midnight. But it’s also necessary for Trump’s electoral project.

        I think the motion to strike may have arisen when they realized how weak their 1512 argument is — it is really really dogshit, and they need to find some way to dissociate him from that mob.

        Both the Constitutional and Statutory were always on the table–but I wonder at what point someone decided they had to be separate. Once you add Trump’s crimes in (which is what would happen if you collapsed them, as most Jan6 defendants have), the Protected Speech collapses .

        • Scott_in_MI says:

          “Both the Constitutional and Statutory were always on the table–but I wonder at what point someone decided they had to be separate.”

          Is that possibly another attempt to delay the proceedings, by requiring separate responses and hearings for each?

      • earlofhuntingdon says:

        Trump may have both: ethically challenged lawyers, willing to make any argument, and he may have dictated one or more lines of “attack.” To echo Marcy, his arguments are bad, but they are primarily part of his electoral campaign.

        It seems likely that, if he has his way, his path to regaining the White House will use more chaos, violence, and deception than the last time.

        • emptywheel says:

          To be fair, the statutory is obviously called for. But having read dozens of these, it is poorly executed. It is poorly executed, though, to hide how well 371 and 1512 apply to his alleged crimes.

          As I said above, I need to go back and do a deeper dive on these (I’m busy writing about Hunter Biden’s dick pics again), but my takeaway is that together they demonstrate where the gaping weak points are.

          Which may be why Trump seems so stressed. Not only did his legal team see what the Sensitive Docs he stole were last week, but they presumably talked him through these filings, and the way he could be seriously fucked.

          • dadidoc1 says:

            It’s very unsettling to me that the majority of the candidates for Speaker of the House voted against certification of the 2020 Presidential Election. The sooner the House of Trump falls, the better.

            • David F. Snyder says:

              While the Tea Party invested heavily in this House of Trump thing, I seriously doubt the fall of the House of Trump is the end of the christofascist billionaires’ attempt to seize this country for their “Lord”. But maybe I’m being too cynical.

        • emptywheel says:

          Adding: I’m going to claim vindication re the MTS. The TV lawyers have always ignored how important the mob is to these charges.

          Trump’s repeated effort to remove the mob suggests his lawyers agree.

      • Capemaydave says:

        As Marcy argued over on X: “Increasingly cognizant what a stressful week last week was for Trump.”

        Trump knows he must maintain that surprisingly anti-fragile (in light of the facts) veneer of righteousness. 2 of his unindicted co-conspirator lawyers plead guilty. So he scream at his lawyers.

        The walls are going to keep closing in on him and the election is STILL over a year away.

        Lots of stress on a 78 year old heart.

        Things are not going to get easier for him.

        • Tech Support says:

          “2 of his unindicted co-conspirator lawyers plead guilty.”

          That would be three now. Jenna Ellis has joined the chat.

      • Bobster33 says:

        I am looking at the Hunter Biden selective prosecution stuff. The fact that Trump is filing the same motion as Hunter Biden lends credence to your assertion that Trump was involved. Trump wants to both sides the crap out of this and the media will likely help.

    • Scott_24OCT2023_0750h says:

      Trump’s motions usually break down in their own, but it’s good to have them professionally demolished as well.

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too common (there are a number of Scotts in this community) it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

    • earlofhuntingdon says:

      Your comment confuses permissible prosecutorial discretion with illegal selective prosecution. The former involves a multitude of legitimate concerns, including workload, importance of case, strength of evidence, persuasiveness of witnesses, likelihood of proving case beyond a reasonable doubt and surviving appeal.

      The latter involves choosing to prosecute for impermissible reasons. Examples include personal animus, stubbornness to admit failure owing to flawed evidence or reasoning, and political prosecution – the primary reasons Trump himself uses the legal system to attack his critics.

    • Dave_MB says:

      All prosecutions are selective in the fact that they’re brought t the discretion of the prosecutor. So the prosecutor has to decide to bring (select) the case. In legal terms, selective prosecution is a term of art, meaning that the person was improperly targeted for reasons not having to do with what they were charged with.

      • earlofhuntingdon says:

        Their advice to defense counsel is “do it,” but their reasons are tactical, owing to the emotional impact of the claim, not its likelihood of success as a legal argument. That fits with Trump’s apparent motivations.

        Note that one of the examples the author uses is Trump’s prior “unsuccessful” attempt to use it to defend felony tax charges against the Trump Org. So, the Don, who nurses a grudge as if he were Smaug defending his mountain of gold, may be relitigating old slights, too.

        • SteveBev says:

          Indeed, and the first 3 reasons the article gives for adopting the strategy/tactic
          1 influencing the potential jury
          2 giving public voice to the defendant’s grievances in a coherent form
          3 fundraising
          Are the core expectations Trump has for his lawyers.

          It was also interesting to see that most of the recent examples of the attempted use of the defense cited were Trump world personalities.

          And Rittenhouse was a defendant whom Trump repeatedly said was unfairly prosecuted, before during and after the proceedings against Rittenhouse.

        • emptywheel says:

          I think it’s a fair read though. Particularly given the invocation of Hunter Biden. Because we know there’s documentation of improper influence involving Trump going back to 2019.

          • jdmckay8 says:

            Everything HB, it seems, has a LOT of inter-twining tentacles just waiting to grab onto multiple fraudulent endeavors. I imagine team Trump will try and disentangle from these truths much as you describe them trying to disentangle TFG from the J6 mob he was commanding.

            Love your handy table.

            My sense is this is all an effort to reach out, inflame and enrage MAGA as widely as possible so they are ready for post-Trump-conviction activities

  1. earlofhuntingdon says:

    He even argues that because there was “a clear difference in form” in the fake electors submitted to NARA, no deceit (or forgery) was involved!

    Trump used similar reasoning to unsuccessfully argue that his financial statements were so unreliable that no one could have relied on them to determine whether to do business with him. It’s as if he counterfeited $100 bills in a way detectable to experts, but with enough quality to fool a casual observer at the point of sale. It’s still counterfeiting. Intentional deception is inherent in the process, just as it is with submitting fake elector documents.

    The fake ballots were not intended to be accepted as legitimate, at least not for long. They were intended to cause chaos and delay, which would allow other parts of his coup attempt to keep him in the White House.

    • RitaRita says:

      If Trump knew the financial statements were unreliable and didn’t intend for anyone to rely on them, why did he go to the trouble to prepare them and to submit them?

      Similarly, if the fake ballots were not intended to serve as real ballots, why submit them? (Chesebro let the cat out of that bag when he wrote the memo saying that they would cause uncertainty.)

      I wonder if Trump’s history with business litigation is informing his strategy here. He was successful in bringing banks and contractors to negotiations by filing lawsuits. Businesses look at even frivolous litigation as a risk and have incentives to settle early.

    • bawiggans says:

      The “clear difference in form” ploy is a variant, adapted for legal use, of the “it was a joke” trope that is rolled out every time Trump gets caught saying something that too-conspicuously draws flies. “You thought I was serious? Just kidding!” This is a form of what has entered the vernacular as “gaslighting”. It is a way to test the limits of what one can get away with that, when called out as bullshit, nonetheless leaves its fragrant residue in the minds of its credulous target audience.

      This motion includes this ploy as an element in their go-to, flood-the-zone-with-shit tactic that pits their capacity to keep producing it against society’s capacity to dispose of it. In this instance if all of their specious assertions are thrown out it merely confirms to the base the conspiracy of prejudice against Trump; should some point be won or conceded it vindicates the justness of the new “Lost Cause” and the campaign to trash the democracy that refuses to give in to it. The court case may suffer, but for the big picture it is a win-win proposition.

      A grand strategy employing these tactics in every domain has been the project of Steve Bannon for many years. Its appeal to Trump as a vehicle to power and the appeal to Bannon of Trump as its avatar are complimentary. The intended endpoint is the drowning of American society in excrement or its demise by fatal distraction from other, existential concerns. Envisioning our democracy in ashes, a fellow of the radical Claremont Institute has now put forward an ideological package for building the new American Empire. He has been dubbed it “Red Caesar”, styling it as next year’s model of one of the shabbier episodes from the Classical Era that Claremont claims to revere, and it is gaining traction in fascist circles. The process of normalizing this abomination has begun.

  2. Critter7 says:

    MTD on Statutory Grounds claims that the question of whether or not the election was “stolen” or “rigged” is a matter of opinion, not a matter of fact (Argument 1.C). Wow!

    • emptywheel says:

      He hit it. They were due yesterday (and technically he may have missed midnight with some of them).

        • P’villain says:

          They could be denied as untimely, and the prosecution will no doubt include that argument in their responses, but if it’s even a somewhat close call, the trial court will rule on the merits to avoid being reversed later on non-substantive grounds.

  3. Mark Sullivan says:

    Doc, as a nonlawyer I’m confused why no one has been specifically charged with inciting the riot itself. It seems to be a no brainer….Trump, Giuliani, Brooks, and others, told the crowd they needed to “…fight like hell…” and this was a “…trial by combat…”.
    Is it because valid or tricky 1st A arguments could be made….?
    To a layman like me, this seems to be the catalyst that set the dominoes in motion on J6

    • scroogemcduck says:

      Like bmaz said.

      The standard in Brandenburg v Ohio is a high bar to clear. It requires speech directed to inciting or producing imminent lawless action. Trump wasn’t charged because he didn’t specifically tell the protestors to break the law, and he mouthed the word peaceful at least once.

      • earlofhuntingdon says:

        And most often involves imminent physical harm. The tie-in with Trump is intuitive, and there’s some evidence of it. But we’d need a lot more direct evidence of incitement with intent to get over the bar set by Brandenburg.

        • Rugger_9 says:

          Intent might be something Powell, Ellis and Chesebro can provide sine I’m pretty sure the fake elector coup had a Plan B. Were any of them in the Garrett Ziegler tour group on 05 JAN 2021?

  4. Boatsail says:

    At this stage of the obese, orange faced 77 year oldsters life he is scrapping the bottom of the barrel for lawyers.

  5. Yogarhythms says:

    Ew, EarlofH,
    I want to thank you both for your deliciously astute legal insights filleting Trump’s MTD’s and MTS, exposing pages of buns and pickles with no beef.

    • bmaz says:

      Lol, another plea from the mostly illegitimate Fulton County mass indictment. Back in the day, people here did not cheer local prosecutors wildly overcharging defendants and then cramming them into guilty pleas. Guess that is all good now though because Trump. What a joke.

      • emptywheel says:

        Yes bmaz. The fact that we’re familiar with the indictment and don’t pretend hacking charges are federal charges is a big joke to you. We get that you will continue to misrepresent this indictment AND accuse us of being in the wrong. We get that.

        • bmaz says:

          I don’t think you, or “we”, get anything at all. But I have been at this a lot longer than you. And I have not misrepresented anything.

          • Sloth Sloman says:

            If you took a break from only responding like a troll and actually gave reasonable arguments rather than gatekeeping the details of your own opinions and expressing them with “lol, wut” to everything, you might actually learn something from someone else.

            I mean, it’s a joke every time a post shows up with your byline – it is nothing but a short, one-two paragraph rehash of the same shit you state every day down here. You keep telling everyone how intelligent you are but you refuse to explain yourself. It’s honestly embarrassing to watch you act like such a child on a daily basis. You have little credibility and aren’t deserving of any benefit of the doubt that you know what you’re talking about at this point.

            I suspect the reasoning is found in the phrase “better to let everyone think you’re stupid than open your mouth and remove all doubt.”

              • P J Evans says:

                There are several subjects – and Fulton County is one of them – where you *don’t* explain, you just assume we all know you don’t like them, and troll us.

                • bmaz says:

                  Eh, no, I explained it constantly, since before Willis’ ridiculous indictment. You, Marcy, and many others, just do not like my take. I have “trolled” nobody. That’s okay, I got no traction in the 80’s as to Miranda either.

                  • jdmckay8 says:

                    I got no traction in the 80’s as to Miranda

                    Yah, the entire world missed most of my greatest hits as well. :( Poooooor we. /s Thankfully, my Dad wisely counselled me against copping attitude about such thing when, as best I can recall… three (3).

          • dannyboy says:

            Your repeated arguement that: “I have been at this longer than you.” has worn thin. As I have actually been around for 76 years and most of those were being correct. I believe that is the difference.

            • bmaz says:

              What is an “arguement”? So, I guess all those decades practicing criminal law are worth nothing as to internet comments. Good to know, “Dannyboy”.

            • David F. Snyder says:

              A point of seeing takes precedence over experience.

              But not even creative insight is a substitute for experience.

    • RobertS721 says:

      Ellis is charged with one count of solicitation of a public officer and the RICO charge. Most of the other defendants are facing more charges.

      A plea deal sounds about right.

      Wikipedia has a handy table of people and charges. They’ve got a useful Venn diagram, too. It looks to me like Ellis and Powell are secondary characters, perhaps more useful for testimony or documents. Powell was facing a bunch of voting machine related charges, but it sounds like she was secondary to the whole fake elector scam.

      • Rwood0808 says:

        I did not have Ellis on deck on my next-to-flip card. I thought the Coffee County gang would fold next.

        Any bets on how the remaining members of the RICO gang will be divided? I imagine many of them are waiting/hoping that the phone will ring with an offer soon. My question is how many more does Willis/Floyd need?

        I’m leaning toward trump, Gulliani, Meadows, Smith, Clark, and Eastman not getting any offers.

        • bmaz says:

          There is NO “RICO Gang”. That is a load of shit Fulton County has propagated. This has always been a problem. Do you see any “RICO” pleas? No? Take a step back.

          • Leu2500 says:

            Gosh, Bmaz. I’m not a lawyer, but I thought the point of a plea deal was to plead to lesser/fewer charges.

            • harold hecuba says:

              I *think* bmaz’s position is reflected in Ellis’s attorney’s comment:

              “For the fourth time, Fani Willis and her prosecution team have dismissed the RICO charge in return for a plea to probation,” [Trump lawyer Steve] Sadow said. “What that shows is this so-called RICO case is nothing more than a bargaining chip for DA Willis.”

              I made a comment earlier that it was “telling” that people have committed to plea deals. bmaz disagreed. I stand by my comment because, whether one agrees with the tactic or not, Sadow seems to be correct.

              But that’s the way the legal system works, isn’t it? We’ve all seen cases where this has happened. Only this time, IMO, it’s happening to someone who should be prosecuted by any legal means necessary, precisely because he didn’t just shoot someone on 5th Avenue. He was President of the United States and did everything he could to destroy the foundations of democracy.

              • bmaz says:

                And I “stand by” what I have said. But I guess I do not understand what the “legal system” means. Probably I can learn from non-attorneys on different continents.

              • earlofhuntingdon says:

                I think there’s some confusion about the purpose and capacity of the legal system, with things that are the responsibility of the political system.

                • harold hecuba says:

                  Confusion? By me and other IANALs? Or the current lawyers and judges handling Trump and company’s cases?

        • Rwood0808 says:

          My mistake.

          Latham is still awaiting her appeal to move her case to federal court. I thought that was done Sept 29th.

          When her turn to flip eventually arrives I imagine the combination of her and The Cheese will provide interesting testimony.

        • emptywheel says:

          Jenna was a pretty obvious one. She’s exposed in GA and not (yet) in DC, and Trump wasn’t paying her bills.

          Re: Rudy, it’ll be a matter of his finances.

          Meadows and Clark won’t do anything until after their 11th Circuit hearing in December.

          • Rugger_9 says:

            Whether it’s RICO or a garden variety conspiracy, we now have three key witnesses against Defendant-1 which will have to talk to SC Smith if he wants to. I think that also means A-C privilege is not operative as a defense, either. I think these are 3 of the unindicted co-conspirators for Smith’s case.

            It would appear that several shoes will be dropping. First, in GA as ones like the phony electors will realize that the team that sent them on their quest has pleaded out and now they themselves are at higher risk for conviction. Combined with the already demonstrated failure of Inmate P01135809 to provide support for his co-defendants they’ll decide just how MAGA they are willing to be.

          • Badger Robert says:

            And in Colorado I expect she will be given a diversion program from Attorney Regulation and a chance to rehabilitate her license. Unless she stole money from her clients, she will get a diversion. Its hard to envision her re-establishing a practice though.

            • bmaz says:

              But thank you for promoting garbage RICO bullshit. It might take decades for people to understand how dangerous is.

                • bmaz says:

                  No, I think anything and everything involving “RICO” state, local or federal, is such absolute shit, it should be laughed at.

                  • P'villain says:

                    OK, so how does referring to John Eastman’s disciplinary proceeding before the CA Bar, which is an actual thing, “promote” Fani Willis’ RICO case, which is also an actual thing? Just trying to understand WTF line you think I crossed.

              • says:

                Bmaz wants ordinary citizens to not be criminally prosecuted for conduct we don’t know in advance is illegal, but more importantly, for conduct THAT IS NOT ILLEGAL NORMALLY, but under GA’s BROAD RICO statute, is used as evidence of conspiracy. CRAZY!

                Objectively viewing the indictment, and knowing 11th Cir. precedent, only 5 to 8 charges against 4 to 5 defendents, if found guilty by jury, would pass constitutional muster. It’s easy to see this becoming a nationwide, or even GLOBAL, contentious partisan battle, over many years, with the likely outcome being less trust in our courts on both sides — Rs not trusting the convictions; Ds not trusting the convictions being overturned.

                We have to uniformly oppose governments charging people for non-crimes, even despicable people. Please, before criticizing Bmaz again, read pgs. 4-5 of Still’s Motion to Remove. And then humbly reflect ” . . .there but for the grace of God go I. . .”?

                • ButteredToast says:

                  Are you implying that partisan considerations should influence charging decisions? This would be antithetical to the rule of law.

                  Aside from that, of course many (most?) Rs probably wouldn’t trust any convictions out of Georgia. They wouldn’t trust convictions on the more narrowly focused and well-supported charges brought by Jack Smith, either. The Republican party has devolved into a cult of personality. In the rightwing alternate universe, any unfavorable trial outcome will be the fault of Trump-hating judges, biased juries, or deep state operatives, just as the fact that Trump lost the 2020 election must be the result of fraud and various batshit conspiracies. As those delusions shouldn’t dictate the running of elections, some 40% of voters living in a fantasy shouldn’t have any bearing on the justice system. And, for that matter, neither should Democrats’ antipathy to Trump.

                  • says:

                    Nope. Opposite. Yes, I agree with sentence 2.

                    And, yes, while current charges did polarize, I fear the untested “overbreadth” and “mens rea” sufficiency of the GA RICO statute, bouncing between appellate and trial courts for a decade, risks prolonging and heightening polarization, and expanding its reach. No other Trump case involves these 2 troublesome, untested, legal issues. (Cont.)

                • says:

                  (cont. from 1:28am)
                  Imagine signing a petition & afterward, being arrested because, unknown to you, the petition was fraudulent & your signature is proof you’ve engaged in criminal conspiracy. Court legitimacy diminishes if charged conduct is not broadly understood (in advance of arrest) to be illegal. Reference, Shawn Still‘s case: “Mr. Still did not have any notice or fair warning that . . . [acting] as a contingent presidential elector could violate” the state statutes he’s been charged with. In fact, “legal counsel advised Mr. Still. . . the elector meeting and vote. . . [aligned] with legal precedent.” (p. 5, Still’s Removal Motion)

                  Both R and D members of the Civil Liberties and Criminal Defense bar find this troubling, AND not likely to withstand Constitutional scrutiny.

                  • Susan D Einbinder says:

                    And, as Bmaz noted, the GA Rico was used to railroad teachers when the whole standardized test cheating scandal erupted: A lot of teachers in the state had taught the tests in advance, since at that time federal funding and continued existence of schools depended on test scores (Leave No Child Behind) … while I do not remember the details, there was a story about how heavy-handedly Fani Willis applied it to the teachers, who got serious jail time – the article I read was either in Mother Jones or The Nation, I think.

                    • Ginevra diBenci says:

                      I have never been a fan of Willis’s methods, starting with the prosecution of the teachers and extending through her treatment of rap lyrics as evidence. Prosecutorial overreach has ruined lives everywhere in the country; that trend gets compounded when prosecutors get treated as rock stars.

                      The way her office has charged the Georgia election cases does seem to to provide a certain proof of concept, however. It’s too soon to tell if/how they will testify against the central players, but the three lawyers who’ve accepted plea deals seem like a success for Willis’s office. Please tell me why I’m wrong because I genuinely want to know.

  6. Amicus12 says:

    So, I finally made my way through DOJ’s response to the absolute immunity motion and now have all of these to read. Yeesh.

    Reading DOJ’s opposition, I had three reactions. First, DOJ has adopted such a flexible and clever way of charging the mob violence. Trump carried out the scheme of obstruction, in part, by “directing supporters to the Capitol to obstruct the proceeding, id. at ¶¶ 86-105; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at ¶¶ 106-124.” Opposition at 2. Seems like there are many possible ways to present and argue this, especially the “exploiting” point.

    Second, DOJ has spent the better part of 80 years arguing in favor of expanding executive authority. In opposing claims of executive authoritarianism, they did a good job.

    Third, and this is the most significant one, claims of absolute and qualified immunity give rise to interlocutory appeal because even being put to the task of defending the charges is a cognizable injury. Nixon v. Fitzgerald, 457 U.S. 731 (1982); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This could delay the trial schedule.

    • Ebenezer Scrooge says:

      Does an interlocutory appeal necessarily stop the lower court litigation during its pendency? I don’t think so, but I’m not sure.

      • Attygmgm says:

        On the civil side a notice of appeal usually (with rare exceptions) divests jurisdiction from the trial level court. When an appeal is decided the appellate court remands jurisdiction back to the trial court.

        I am not sure how those jurisdictional details dovetail on the criminal side but I would expect them to be similar.

      • sohelpmedog says:

        At least on the civil side, unless the appeal is frivolous, the interlocutory appeal on the claim of immunity will stay the lower court proceedings because the claim of immunity includes immunity from suit, not just from liability. It seems that the same rules should hold with even more force in criminal proceedings.

        • says:

          It’s not really been tested in criminal law: No criminal defendent prior to Trump has brazenly pled, essentially, “Divine Right of Kings” as defense to a crime.

          Not to disagree with esteemed commenters above, but I’d argue instead of civil rule/procedure being applied here, I’d argue abstention doctine is more applicable and, if analogous rules applied, would preclude both interlocutory appeals and adminstrative stays unless Trump meets 1 of the 3 (modified)”Younger” exceptions and then, ONLY IF Trump’s interest in vindicating what he views as a personal right, outweighs the public interest in public safety (free from political violence), national security (in docs case) and the peaceful transfer of power.

          In other words: you (criminally) play? No stay! is what I would argue in this unprecedented case.
          …which due to being 1st impression would automatically be appealable. But good precedent to set!


    All these actions by Trump sadly show that we have two systems for justice. The rich can file suit after suit, whether they are frilvious or now, and under our system, the courts divert time for the courts to decide and respond, then Trump appeals that!. Trump might see jail someday, but it likely years and years away and he will die of natural causes by then. So, no jail time before the election. My only hope is that if he is indeed convicted on some counts (i.e. no jury nullification), his star will be so tarnished that not enough independents or RINOs or wayward Democrats will vote for him. For Republicans who just can’t vote for Biden, perhaps they go for RFK Jr or just stay home.

    • emptywheel says:

      Many of the Jan6ers repped by FPDs filed very similar MTDs. There are a lot of ways rich people can dodge justice. Filing normal MTDs is not something available only to the rich, at least not in a Federal district with good PDs.

  8. Badger Robert says:

    Thanks for the sanity check from Dr. Wheeler. Her explanation of these legal documents which do not have an apparent legal purpose but are part of a public relations campaign confirms my impression that these documents are not readily distinguished from total nonsense.

  9. Savage Librarian says:

    Hear Them Shout

    For free will, And no jail,
    Who’ll admit each crusty fail,
    as the cases go rolling along?
    In and out, hear them shout,
    Coming March who’ll write about
    how those cases kept rolling along?

    Then it’s hi! hi! hee!
    In the yield of shill-ery,
    Shout out your numbers loud and strong,
    For where e’er you go,
    you will always know
    some cases kept rolling along.

    “The Cassions Go Rolling Along”

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