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Special counsel seeks to limit ‘political’ issues at Trump trial

Seeks to block arguments about Congress' revisions to the Electoral Count Act after the Jan. 6, 2021, attack on the Capitol

John L. “Jack” Smith, special counsel investigating former President Donald Trump, after making a public statement in June.
John L. “Jack” Smith, special counsel investigating former President Donald Trump, after making a public statement in June. (Bill Clark/CQ Roll Call file photo)

Federal prosecutors in Washington asked a judge to prevent Donald Trump from bringing up “partisan political attacks and irrelevant and prejudicial issues” during a trial on charges tied to his effort to overturn the results of the 2020 election.

Special Counsel John L. “Jack” Smith filed a motion Wednesday that would limit what the former president and leading candidate for the Republican presidential nomination could argue when the case goes to trial.

“Much as the defendant would like it otherwise, this trial should be about the facts and the law, not politics,” the filing states.

A trial in the U.S. District Court for the District of Columbia is set for March, but the case is on pause right now as Trump pursues an appeal on an argument that his presidency shields him from the charges.

The topics prosecutors listed include revisions Congress made to the Electoral Count Act after the Jan. 6, 2021, attack on the Capitol building, meant to “ensure that the defendant’s unprecedented and undemocratic efforts would not be repeated.”

The prosecutors point to public statements that claim those revisions “somehow legitimize his criminal efforts to pressure the Vice President to exceed his authority under the prior version of the ECA.”

Allowing Trump to make that argument to a jury would cause a “time-consuming minitrial on the legislation,” the filing states.

“The Government, for instance, would have to respond with proof of the many reasons that Congress chose to update the century-old law, whether any revision was actually necessary, and whether any revisions were considered but not undertaken,” the filing states.

“This could potentially require a large number of witnesses, since hundreds of Members of Congress voted for the legislation in question, each based on his or her own rationale,” the filing states.

Prosecutors also point to an accusation that President Joe Biden directed the indictment “as a form of election interference,” which they say is not only wrong but has nothing to do with whether Trump is guilty.

The prosecutors also want to stop legal arguments Trump has made, such as that “he is immune from prosecution and that his fraudulent statements are protected by the First Amendment.”

Smith has brought four charges against Trump, alleging that he orchestrated a broad effort to overturn the result, including efforts to stop vote counting, putting forth false slates of presidential electors and encouraging then-Vice President Mike Pence to throw out the Electoral College votes of states Trump lost.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear arguments Jan. 9 on Trump’s claim that he can’t be prosecuted for acts that fell within his duties as president, or acts that the Senate acquitted him for in the February 2021 impeachment trial after he left office.

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