The Fulton County judge overseeing former President Donald Trump's Georgia RICO case has denied the presumptive 2024 Republican presidential nominee's motion to dismiss the election interference charges on First Amendment grounds. Trump was arguing that his alleged actions were constitutionally protected political speech and cannot be prosecuted. In essence, Trump enjoyed the same free speech rights to speak out on the legitimacy of the 2020 election results as any other U.S. citizen.
"After considering the extensive briefing, the argument of counsel, and the indictment, the Court finds these vital constitutional protections do not reach the actions and statements alleged by the State. Nor do the statutes themselves facially violate the First Amendment," reads Judge Scott McAfee's 14-page ruling Thursday shooting down the defense's dismissal efforts.
"Although the First Amendment is 'a broad umbrella that shelters all political points of view and shields a wide range of avenues for expression,' free speech—including political speech—is not without restriction," McAfee wrote, specifying that several "narrowly defined forms of expression are categorically excluded" from 1A protection. These excluded categories include "speech integral to criminal conduct, fraud, or speech presenting an imminent threat that the government can prevent," he explained.
"Nor is a false statement which threatens to deceive and harm the government and that is knowingly and willfully made 'in a matter within a government agency's jurisdiction' free from restriction," McAfee went on, noting: "Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity."
This statement from Trump’s attorney, Steve Sadow, points out that Judge McAfee does not foreclose the possibility that the defendants could again raise their 1st Amendment argument after the development of a factual record (i.e., on a motion for a directed verdict at trial.) https://t.co/h3g2j9Tlf2
— Anna Bower (@AnnaBower) April 4, 2024
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Townhall columnist Phil Holloway pointed out that Trump's counsel can re-raise the issue after a fact-based record is developed.
"President Trump and other defendants respectfully disagree with Judge McAfee’s order and will continue to evaluate their options regarding the First Amendment challenges," Trump's lead defense attorney Steve Sadow said in a press statement shared with Townhall. "It is significant that the court's ruling was without prejudice, as it made clear that defendants were not foreclosed from again raising their 'as-applied challenges at the appropriate time after the establishment of a factual record'..."
Last week, Sadow delivered the defense's argument in Fulton County Superior Court, where he challenged the grand jury indictment on grounds that the charges brought against his client, "[e]very single alleged overt act listed and count charged," attempt to "criminalize" free speech and "expressive conduct," which are, otherwise, protected under the First Amendment.
"The speech Fulton County prosecutors seek to criminalize is precisely the kind of core political speech the Founders envisioned when carefully crafting those freedoms to ensure that, for the rest of time, U.S. citizens would not fall prey to mass repression and the manipulation or suppression of information as a means of control," Sadow wrote in a December court filing.
By "affording the broadest protection to political speech and discussion regarding governmental affairs," the First Amendment "not only embraces but encourages exactly the kind of behavior under attack in this Indictment," Sadow explained in the brief.
In response, the prosecution claimed that Trump's "crimes, as alleged in the indictment, are not protected political speech and are not shielded from prosecution by the First Amendment." The indictment is "based on criminal acts, not speech," they wrote.
At the Atlanta courthouse, Sadow said the "only reason it becomes unprotected" is when the state says it's false.
"That's the essence of what we have right here," Sadow said. "That's the facts that have been alleged. Essentially, the state’s position is: Because, as alleged, what President Trump said, speech-wise, or expressed either through his speech or his conduct, which is still freedom of expression, because that's false, in the eyes of the state, it's lost all protections of the First Amendment."
"If anything, under the circumstances, it needs more protection, not less protection," Sadow continued.
When dealing with political speech, Sadow advised "pushing forth a counterview of truth—not prosecuting the speechmaker or the person who is articulating his political views." In Trump's Georgia case, "we've done just the opposite," Sadow said. "We've decided that because those views are unpopular, and in the state's opinion false, we must prosecute them to stop them from happening again, which is the essence of why it's unconstitutional as applied because that's not what the law says."
"Take out the political speech, no criminal charges. Political speech disagreed with—basis for all charges," Saddow summarized.
Fulton County prosecutor Donald Wakeford urged the court to reject Saddow's challenge, claiming that the indictment doesn't criminalize Trump's speech or expression as expressed, but that both were conducted in furtherance of criminal activity.
Trump is "not being prosecuted for lying," Wakeford said. "He's being prosecuted for lying to the government, an act which is illegal because it does harm to the government." For example, Wakeford further argued that Trump's filing false documents charge means the defendant made false statements to a court, "which does harm to the judicial system." These statements were "part of criminal conduct that is larger than just the false statement on its own," Wakeford said, adding: It's "not just that he lied over and over and over again [...] it's that each of those was employed as part of criminal activity with criminal intentions."
Wakeford said Sadow wanted to frame the indictment as "It's all speech [...] he [Trump] was just a guy asking questions [...] and not part of an overarching criminal conspiracy trying to overturn election results for an election he did not win by violating the RICO statute, by making false statements to the government, by filing false documents, by impersonating officers, and doing a whole host of other activities harmful, in addition to the falsity of the statements employed to make them happen."
On behalf of the state, RICO expert John Floyd refuted Sadow's 1A argument: "It could be legal conduct. It could be First Amendment-protected conduct that also shows there's a conspiracy in operation, and as long as it serves that purpose, it's fine."
"The purpose of an overt act is to show the conspiracy is in operation. It is not a separate crime; it doesn't have to satisfy the elements, doesn't have to be pled with that level of detail [...] and so to say we can't mention this particular act or this particular conduct because it's not a crime or it's protected by the First Amendment, the answer to that is, actually, so what?" said Floyd.
As Georgia State law professor Anthony Michael Kreis explains, the fight was over whether the state is prosecuting false statements "for the sake of punishing falsity" or whether Trump's commentary "intended to induce criminal acts" under state law.
McAfee earlier ruled in favor of keeping Fulton County District Attorney Fani Willis on the Trump case after she was caught having—and concealing—an affair with then-special prosecutor Nathan Wade, whom she hired to helm the prosecution.
Since she appointed him, Wade was paid more than $650,000 for his work on the Trump case and then took Willis on "vacations across the world," including trysts in Aruba, the Bahamas, Belize, and Napa Valley. Therein lay the financial benefit that the defense said was cause for Willis's removal. However, McAfee ultimately decided not to disqualify Willis, allowing her the option of either firing Wade or stepping aside herself to alleviate an "appearance of impropriety" that remained. Within hours, Wade resigned, keeping the Trump case on track after it was derailed for months by the bombshell prosecutorial misconduct claims.
McAfee is still forging ahead with the pre-trial proceedings despite the defense officially taking the non-disqualification decision to the Georgia Court of Appeals. The judge gave the defense the greenlight to seek a review of his ruling at the appellate level, but McAfee indicated he intends to address any outstanding motions in the meantime, pending the appeals court's final assessment.
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