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Donald Trump’s third criminal indictment was, by some measures, the one much of the political world was waiting for. On August 1, a federal grand jury in Washington, D.C. returned a four-count indictment charging the former president with trying to overturn the 2020 presidential election and subvert lawful votes.
There was no shortage of questions surrounding the case, but near the top of the list was an unavoidable line of inquiry: What kind of defense would we see from the Republican and his attorneys?
The answer continues to come into focus, and it’s not an especially pretty one. The New York Times reported:
Lawyers for former President Donald J. Trump fired off a barrage of new attacks on Monday night against the federal charges accusing him of conspiring to overturn the 2020 election, filing nearly 100 pages of court papers seeking to have the case thrown out before it reaches a jury. In four separate motions to dismiss — or limit the scope of — the case, Mr. Trump’s legal team made an array of arguments on legal and constitutional grounds, some of which strained the boundaries of credulity.
The Times’ report was certainly polite. Describing Team Trump’s arguments as straining “the boundaries of credulity” seemed like a generous way of saying the arguments were plainly foolish.
But putting courtesies aside, the latest court filings suggest that the former president and his defense counsel have thrown everything they could possibly think of — without regard for shame — in the hopes that something, anything, might stick.
Most of the claims were familiar. Team Trump argued that the charges are politically motivated, despite the lack of evidence to bolster the allegations. The filings also pushed a clumsy First Amendment argument, claiming that the Republican’s lies were, and are, protected speech.
But there was one element of the filings that stood out for me. Times reported:
And they argued that under the principle of double jeopardy, Mr. Trump could not be tried on the election interference charges since he had already been acquitted by the Senate on many of the same accusations during his second impeachment.
“The United States Senate has previously tried and acquitted President Trump for charges arising from the same course of conduct alleged in the indictment, the impeachment and double jeopardy clauses both bar retrial before this Court and require dismissal,” the filing argued.
I can appreciate the temptation to throw the proverbial kitchen sink into court filings, but this is genuinely laughable.
Revisiting our earlier coverage, Trump was impeached by a bipartisan majority in the House in early 2021. His case went to the Senate, where a bipartisan majority voted to convict (though the total fell short of the 67 votes needed). One Senate Republican conceded, independent of the political impeachment process, that she believed Trump’s actions were “unlawful.”
Meanwhile, Senate Republican Leader Mitch McConnell, after the Senate “trial,” delivered remarks on the chamber floor about Trump’s legal liabilities. “President Trump is still liable for everything he did while he was in office, as an ordinary citizen,” McConnell said, adding, “He didn’t get away with anything yet — yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”
McConnell made this argument in part because the Senate proceedings weren’t an actual trial. There was no courtroom. The process did not follow the rules of criminal procedure. The “jurors” were seen routinely communicating with those representing the “defendant.”
What’s more, as my MSNBC colleague Hayes Brown noted, Team Trump tried this gambit before, and it didn’t work.
Let’s not forget that a federal judge already dismissed Trump’s claim in a civil lawsuit that the Senate’s acquittal triggered the “double jeopardy” clause. “President Trump offers no evidence to support a conclusion that the Framers intended for the absence of any reference to an acquitted officer following impeachment to mean that such official could not be subject to judicial process,” Judge Amit Mehta wrote in February 2022.
If the former president is counting on the “double jeopardy” argument to help get him out of trouble, he probably ought to start lowering his expectations.
This post updates our related earlier coverage.