Fulton judge rejects Trump free speech challenge to election charges

A Fulton County judge on Thursday refused to drop election interference charges against Donald Trump and his co-defendants saying the state’s prosecution against them does not violate their constitutional right to free speech.

The former president had argued the charges against him should be dismissed because prosecutors were attempting to punish him for political speech, which is shielded under the First Amendment.

“The defense has not presented, nor is the court able to find, any authority that the speech and conduct alleged is protected political speech,” Superior Court Judge Scott McAfee wrote.

But McAfee said there were limits to protected speech.

“Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity,” McAfee wrote in a 14-page order.

In a statement, Trump attorney Steve Sadow said he was evaluating his options in light of the ruling but pointed out that McAfee specifically left open the possibility that the defense could again raise a First Amendment challenge “after the establishment of a factual record” in the case. This likely means the challenge could be raised again at trial after the admission of evidence and testimony.

The DA’s office declined to comment.

Trump and his 14 remaining co-defendants have been charged with racketeering and other offenses for their efforts to overturn Democrat Joe Biden’s narrow win in Georgia’s 2020 election. No trial date has been set.

Also Thursday, McAfee denied a challenge to the indictment by defendant David Shafer on grounds it contains several improper legal conclusions. Shafer, the former state GOP chair who cast Electoral College votes for Trump, contended the indictment was inaccurate when it called the Democratic electors “duly elected and qualified presidential electors” and said the GOP electors cast “false Electoral College votes.”

But McAfee wrote that it is his practice to tell jurors that an indictment is not evidence. And he said “the challenged language is not prejudicial because it accurately describes the alleged offenses and makes the charges more easily understood by providing a basis to differentiate the allegedly lawful and unlawful acts of presidential electors (as theorized by the state).”

The two challenges were among a number filed by Trump and other defendants seeking to get some of the 41 criminal counts in the election interference case dismissed before trial. In March, McAfee dismissed six criminal counts related to attempts by Trump and five others to solicit officials to violate their oaths of office. He said they lacked sufficient detail.

His decision left the bulk of the criminal case intact and prosecutors may choose to re-indict on those charges or ask for permission to appeal.