Fulton Superior Court Judge Scott McAfee on Wednesday struck down six counts of the August indictment that alleged felony conduct by former President Donald Trump and 18 others, saying they lacked sufficient detail.
In a nine-page ruling, McAfee dismissed counts lodged against Trump, former New York City Mayor Rudy Giuliani, lawyer John Eastman, former White House Chief of Staff Mark Meadows and attorneys Ray Smith and Bob Cheeley.
The indictment handed up in August contained 41 felony counts; there are now 35 counts that remain. Trump is still facing 10 felony counts, down from the 13 originally filed against him.
Monday’s decision left intact the bulk of Fulton County’s sweeping racketeering case against the former president and his allies. It seemed McAfee wanted to make that clear in his order when he wrote, “This does not mean the entire indictment is dismissed.”
Prosecutors can re-indict the case with another grand jury to correct the flaws in the six struck counts or ask an appeals court to review McAfee’s decision. The judge said he’ll “likely grant” permission to appeal should the state seek it.
All of the charges that were dismissed relate to allegations that defendants illegally urged Georgia elected officials, including Secretary of State Brad Raffensperger, then-House Speaker David Ralston and members of the General Assembly to violate their oaths of office by convening a special session of the Legislature to appoint pro-Trump electors.
When McAfee held a hearing in December on motions to dismiss a number of counts in the indictment, the defense’s arguments against the solicitation counts seemed to resonate with the judge.
“The Court’s concern is less that the State has failed to allege sufficient conduct of the defendants – in fact it has alleged an abundance,” McAfee wrote Wednesday. “However, the lack of detail concerning an essential legal element is, in the undersigned’s opinion, fatal.”
McAfee said the six counts contain “all the essential elements of the crimes” but don’t provide enough detail regarding the alleged felonies committed. “They do not give the defendants enough information to prepare their defenses intelligently,” he added.
Defense attorney Don Samuel, who represents Smith, said he was “delighted” with McAfee’s ruling. Samuel had led the arguments that some of these counts be struck down.
“The indictment on those counts failed to properly allege an offense and this is what we believe will be the first step in eventually exonerating Ray Smith on all charges,” he said.
Trump’s lead attorney, Steve Sadow, also applauded the decision.
“The ruling is a correct application of the law, as the prosecution failed to make specific allegations of any alleged wrongdoing on those counts,” he said. “The entire prosecution of President Trump is political, constitutes election interference and should be dismissed.
Credit: TNS
Credit: TNS
A spokesman for Fulton District Attorney Fani Willis did not immediately respond to a request for comment.
McAfee struck down the following counts from the indictment:
- Count 2 - Alleged that Giuliani, Eastman, Smith and attorney Jenna Ellis, who struck a plea deal with prosecutors in October, unlawfully solicited members of the Georgia Senate to violate their oaths of office during a Dec. 3, 2020, subcommittee hearing in which they pressed the lawmakers to appoint Trump electors
- Count 5 - Alleged that Trump illegally pressed Ralston to violate his oath of office during a Dec. 7, 2020 phone call, in which the then-president urged him to convene a special session of the Legislature to count the votes of GOP electors
- Count 6 - Alleged that Giuliani and Smith unlawfully urged members of the Georgia House to violate their oaths of office by testifying at a Dec. 10, 2020, hearing in which they asked them to appoint Trump electors
- Count 23 - Alleged that Giuliani, Smith and Cheeley acted illegally when they implored state senators to violate their oaths of office during a Dec. 30, 2020, hearing to name Trump electors
- Count 28 - Alleged that Trump and Meadows unlawfully solicited Raffensperger to violate his oath of office during a Jan. 2, 2021, phone call in which Trump asked the secretary to “find” him 11,780 votes. The indictment said Trump was asking Raffensperger to illegally alter, adjust or influence the certified returns for presidential electors in the state
- Count 38 - Alleged that Trump illegally solicited Raffensperger to violate his oath of office on Sept. 17, 2021, when the former president wrote a letter to the secretary urging him decertify the 2020 election results and “announce the true winner”
McAfee’s dismissals comes before he issued a much-anticipated decision on whether to disqualify Willis and her office from the case. Nine defendants have argued that Willis has a financial conflict of interest stemming from her previous relationship with special prosecutor Nathan Wade. Willis has denied wrongdoing. McAfee has said he hopes to rule by Friday.
Andrew Fleischman, an Atlanta criminal defense attorney unaffiliated with the case, said he believed the solicitation counts were always the weakest charges in the indictment.
“There were a lot of tricky elements that were going to be hard to prove and that would have taken a lot of court time,” he said.
Fleischman said if prosecutors decide to re-indict the case it would allow defense attorneys to file additional motions attacking the new criminal counts.
“It would be so much smarter for the state to just go forward with the case without those six counts,” he said.
If the state appeals, it could push back the start date for a trial for many months at a time when Willis has said she wants the case to go to trial this summer.
In his order on Wednesday, McAfee wrote that the defendants were essentially accused of soliciting state officials to violate their oaths to the Georgia Constitution and the U.S. Constitution, and that’s not specific enough for the defendants to know which provisions of those constitutions were violated.
“On its own, the U.S. Constitution contains hundreds of clauses, any one of which can be the subject of a lifetime’s study,” he wrote. “Academics and litigators devote their entire careers to the specialization of a single amendment.”
To further complicate the issue, certain provisions of the Georgia Constitution “have been interpreted to contain dramatically different meanings” than its U.S. counterpart, he noted.
For these reasons, he said, the six solicitation counts must be dismissed because they “fail to allege sufficient detail regarding the nature of their commission, (that is) the underlying felony solicited.”
