The charges against former President Donald Trump in the Fulton County election interference case should be dismissed because he cannot be criminally charged for political speech that is protected under the First Amendment, his lawyer argued Thursday.
“When you look at the allegations against President Trump, all of the allegations — all of the allegations — involved expressive conduct or speech,” Trump’s lead attorney, Steve Sadow, argued. And all of them “are political core value, political discourse.”
Thursday’s arguments, before Fulton Superior Court Judge Scott McAfee, marked a return to the sweeping racketeering case against Trump and 14 co-defendants after more than two months spent examining DA Fani Willis’ romantic relationship with a subordinate.
In court hearings that were frequently testy and filled with salacious details about vacations, cell phone records and money, defense attorneys had argued that Willis and her entire office should be disqualified from the Trump prosecution. They said her relationship with lead special prosecutor Nathan Wade amounted to a conflict of interest.
McAfee denied the defense motion but said that Willis could only stay on the case if Wade withdrew, which he did just hours after the order was issued on March 15. Although McAfee is allowing the defense to appeal his order, he began working once again on the core of the election interference case, hearing motions by Trump and former state GOP chair David Shafer.
Sadow’s political speech arguments are similar to those raised by Trump’s lawyers in the federal election interference case in Washington. Fulton prosecutor Donald Wakeford asked McAfee to pay close attention to the order denying the challenge issued by U.S. District Judge Tanya Chutkan.
In December, Chutkan found that Trump’s indictment did not violate the First Amendment.
“It is well established that the First Amendment does not protect speech that is used as an instrument of a crime, and consequently the indictment — which charges (Trump) with, among other things, making statements in furtherance of a crime — does not violate (Trump’s) First Amendment,” she wrote.
The Fulton charges against Trump — racketeering and 12 other felony counts — all stem from his political speech in trying to ensure the 2020 presidential election was not stolen, Sadow said.
“Clearly being president of the United States at the time, dealing with elections and campaigning, calling into question whether what had occurred, at least in the election of 2020 for president, that’s the height of political speech,” he said.
Sadow also said the state has taken this position: “We have decided that because those views were unpopular and, in the state’s opinion, false, we must prosecute them to stop them from happening again.”
But Sadow argued “there is nothing alleged factually against President Trump that is not political speech.”
Wakeford rejected that premise.
“It’s not just that he lied over and over and over,” it’s that what he was saying and doing was part of “a criminal act, with criminal intentions,” the prosecutor said of Trump.
“The mere fact that you’re talking about issues of public concern or core political speech, which may be completely fine and protected in most contexts, does not mean you cannot be indicted if you use that kind of speech to pursue criminal activities,” Wakeford said. " ... This is all alleged as part of a pattern of criminal conduct and not protected by the First Amendment.”
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
Thursday’s hearing was the first without Wade at the prosecution table quarterbacking arguments for the DA’s office. Willis did not attend. Wakeford was joined by nearly a dozen other colleagues, including special prosecutors John Floyd and Anna Cross.
Later in the hearing, Craig Gillen, Shafer’s lead attorney, argued that several of the conclusions made in the indictment were flawed, including that presidential electors are considered public officials.
Shafer and two others are charged in the indictment with impersonating a public officer for signing documents that listed them as Georgia’s duly elected presidential electors for Trump, even though Democrat Joe Biden had been certified the winner of the state.
Gillen argued that presidential electors are more akin to grand jurors or party officials, who past court rulings have determined were not considered public officials under Georgia law.
Electors’ “job services are temporary, like the grand jurors. Their position really only arises once every four years, is limited to a single meeting on a single day,” Gillen said. “So it lacks that element of tenure and duration which must exist.”
Prosecutors disagreed, arguing that Georgia’s appellate courts have applied a more liberal standard to who constitutes a public officer.
”Anything that purports to be someone acting by authority of the government is a public officer, and that’s certainly what presidential electors do,” Deputy DA Will Wooten said. “Their position is created by law, their duties are established by law.”
Wooten said there is an actual office of presidential electors in Georgia that was created by state statute and the U.S. Constitution and that they are compensated as set forth by law. He also noted that Shafer is one of several defendants in the case seeking to move the case from Fulton to federal court.
”The elephant in the room is that Mr. Shafer is in the 11th Circuit right now demanding to be recognized as a federal officer,” he said.
Gillen also argued that the state was overly broad in its definition of what constitutes forgery as it related to the meeting of the GOP electors.
McAfee did not offer any indications about the timing of a trial in the case.
