ATLANTA (CN) — Fulton County Superior Court Judge Scott McAfee heard arguments Thursday on filings from Donald Trump asserting that the Georgia election interference indictment criminalizes the former president's First Amendment rights.
Political and election discussions are the zenith of protected speech, Trump's attorney Steve Sadow told the judge.
Sadow said most of the overt acts in the indictment against Trump involve his tweets or other expressive conduct that should not be considered unlawful just because the government says they were false.
Fulton County Assistant District Attorney Donald Wakeford said Trump's statements were included in the indictment because they were made with criminal intent — part of the overall purported criminal conspiracy to overturn his 2020 election defeat to President Joe Biden.
Trump's speech itself is not being prosecuted, Wakeford said: "He's being prosecuted for lying to the government. That's what makes it illegal."
"They are part of criminal conduct larger than just the false statement on its own," the prosecutor added.
Sadow argued that Trump's conduct was spurred by genuine, legitimate election concerns. Wakeford said that's for the jury to decide at trial.
Judge McAfee previously rejected a similar First Amendment challenge last fall filed by two of Trump's co-defendants, attorneys Kenneth Chesebro and Sidney Powell. The judge cited numerous court cases in ruling that a factual record must be established at trial before considering such challenges.
Chesebro and Powell later accepted plea deals.
The judge also heard arguments Thursday on a motion to dismiss filed by David Shafer, former chair of the Georgia Republican Party, who along with other state Republicans signed a certificate asserting that Trump won the 2020 presidential election in Georgia and declaring themselves the state's "duly elected and qualified" electors.
The charges against Shafer include impersonating a public officer; forgery; false statements and writings; and attempting to file false documents — all stemming from his helping organize the group of Georgia Republicans to cast Electoral College votes for Trump even though the state's election had been certified in favor of Biden.
Defense attorney Craig Gillen argued Thursday that Shafer's conduct was lawful because he “was attempting to comply with the advice of legal counsel” and the requirements of the Electoral Count Act. Gillen also said that a presidential elector should not be considered a public officer as defined by the law.
The hearing was the first in the case since the judge rejected efforts by several defendants, including Trump, to disqualify Fulton County District Attorney Fani Willis from prosecuting the case earlier this month over her former romantic relationship with special prosecutor Nathan Wade. The judge did however give Trump and multiple other defendants the green light to appeal his decision, which would be due to the Georgia appeals court by Monday.
Although McAfee didn't remove Willis from the case, he was sharply critical of her actions and said Wade, her hand-picked lead prosecutor on the case, must recuse himself in order to avoid any conflicts of interest.
Just days earlier, the judge dismissed six of the 41 counts in the indictment, including three against Trump, finding prosecutors failed to provide sufficient detail about the alleged crimes.
Willis obtained the indictment against Trump and 18 others in August 2023. The defendants are accused of a wide-ranging scheme to try and illegally change the outcome of the 2020 presidential election in Georgia, which the Republican incumbent narrowly lost to Democrat Biden.
All of the defendants were charged with violating Georgia's expansive anti-racketeering law, along with other related crimes.
Four people have accepted plea deals so far; Trump and the other defendants have pleaded not guilty. No trial date has been set, but prosecutors are pushing for it to begin in August, before the 2024 presidential election.
Trump has also claimed in this case, as well as in the federal election interference case against him, that he has presidential immunity from prosecution. The U.S. Supreme Court is scheduled to hear those arguments in April and is expected to issue a ruling on the issue before its term ends in June.
Follow @Megwiththenews
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Sudan war marks one-year anniversary April 15, 2024 -
