Georgia election charges should be tossed, acts are protected by 1st amendment: Trump attorney

In a hearing Thursday in Fulton County Superior Court, lawyers for former President Trump and co-defendants argued that the sweeping election interference case against him should be tossed, citing First Amendment protections for political speech. 

Judge Scott McAfee presided over the hearing Thursday morning in the first court appearance in the Trump case since ordering District Attorney Fani Willis to remove special counsel Nathan Wade from the case over their romantic affair. 

McAfee heard arguments related to motions from Trump and co-defendant David Shafer, the former chairman of the Georgia Republican Party, who his lawyer says acted legally when he and other state Republicans signed a certificate asserting that Trump won the 2020 presidential election in Georgia.

Steve Sadow, counsel for the former president and presumptive GOP nominee in the 2024 election, argued Thursday, "There is nothing alleged against President Trump that is not political speech."

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Judge Scott McAfee at the Fulton County Courthouse in Atlanta. (Alyssa Pointer, Getty Images)

Sadow quoted from a dissent in a key Supreme Court case, United States v. Alvarez, written by Justices Clarence Thomas, Samuel Alito and the late Justice Antonin Scalia, which says "even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal." 

"Today's accepted wisdom sometimes turns out to be mistaken. And in these contexts, even a false statement may be deemed to make a valuable contribution to public debate, since it brings about the clear perception and livelier impression of truth produced by its collusion with error," Sadow read from the dissent.

"That's the essence of what we have right here. That's the facts that have been alleged," Sadow said. 

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Former President Trump speaks during a Buckeye Values PAC Rally in Vandalia, Ohio, on March 16, 2024. (Kamil Krzaczynski/AFP via Getty Images)

"Essentially, the state's position is, because – as alleged – what President Trump said speech-wise or expressed either through his speech or conduct, which is still freedom of expression, because that's false in the eyes of the state, it's lost all protection to the First Amendment." Sadow argued, adding that Supreme Court justices concluded "just the opposite" in their dissent. 

A lawyer for the state pushed back, saying "what we have heard here today is an attempt to rewrite the indictment, to take out the parts that are inconvenient and only say, ‘Well, it's all speech, it's all talking.’"

"He was just the guy asking questions and not someone who was 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 activity which is harmful in addition to the falsity of the statements employed to make them happen," the state’s lawyer added. 

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Fulton County District Attorney Fani Willis is spearheading the sweeping 2020 election interference case against Trump. (AP Photo/John Bazemore)

Trump was indicted in August on charges that include the Georgia RICO Act – the Racketeer Influenced And Corrupt Organizations Act; solicitation of violation of oath by a public officer; conspiracy to commit impersonating a public officer; conspiracy to commit forgery in the first degree; conspiracy to commit false statements and writings; conspiracy to commit filing false documents; conspiracy to commit forgery in the first degree; and filing false documents. 

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In March, Judge McAfee tossed six of the charges against Trump and his co-defendants, saying the state failed to allege sufficient detail for six counts of "solicitation of violation of oath by public officer."