Trump's Georgia election subversion case faces key hearing

An attorney for one of the alleged fake electors in Georgia made several arguments in an effort to get charges in the election subversion case dismissed, including over who was a "duly" appointed elector for Georgia after the 2020 election.

Craig Gillen, an attorney for David Shafer, the former chair of the Georgia Republican Party who allegedly acted as a 2020 fake elector in the state, disputed the allegation in the indictment that Shafer was not a “duly” appointed elector.

In December, when Shafer and others allegedly submitted a false document claiming to be Georgia electors, declaring Trump had won Georgia, “there were no duly elected and qualified presidential electors from the state of Georgia,” Gillen argued Thursday.

Gillen also put forth an argument that other co-conspirators have also raised in the case: that they were merely following legal advice. In his court filing on the matter, Gillen wrote that Shafer was “attempting to comply with the advice of legal counsel” and trying to follow the law that governs the electoral count when he submitted the allegedly fake document declaring Trump had won the state.

Gillen also has argued that, under the law, Shafer never acted as a “public officer,” as the indictment alleges and pushed back on the notion that Shafer committed forgery in signing the elector document.

During today's hearing, Trump attorney Steve Sadow has repeatedly cited a 2012 Supreme Court case dealing with free speech to bolster his argument that the charges against the former president should be dismissed.

The court, in US v. Alvarez, struck down a law that had made it a crime to falsely claim that military medals were earned. Writing for a majority, then-Justice Anthony Kennedy said that the law violated free speech protections. 

Then-Justice Stephen Breyer wrote in a concurrence that the government could find "less restrictive ways" to "achieve its legitimate objectives."  Conservative Justices Samuel Alito, Clarence Thomas and Antonin Scalia dissented, saying that the law did not go too far.

Sadow on Thursday invoked both Alito and Breyer.

“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 of the First Amendment.’ And the concurring opinion and the dissenting opinion in Alvarez suggests just the opposite. If anything, under the circumstances, it needs more protection, not less protection,” he said.

In a hearing this morning, Donald Trump’s lead attorney in Georgia is arguing that the indictment should be dismissed because the former president’s political speech is protected by the First Amendment. 

Previous First Amendment challenges by former Trump co-defendants Kenneth Chesebro and Sidney Powell were unsuccessful.

Chesebro and Powell were two of the former president’s lawyers who later pleaded guilty in exchange for their testimony and cooperation. They had attempted to have the indictment dismissed under the US Constitution’s supremacy clause but failed.

In his denial at the time, Judge Scott McAfee ruled that various case law pointed to facts and evidence needing to be established in a courtroom before a First Amendment challenge can even be considered.

Responding to Donald Trump’s argument that the indictment against him in Georgia should be dismissed because his actions were protected by the First Amendment, a prosecutor for Fulton County’s District Attorney pointed to a federal judge’s decision on the same issue in Trump’s parallel election subversion case in Washington, DC.

Chutkan is overseeing the election subversion case against Trump brought by special counsel Jack Smith in DC. The case has been on pause for several months as the Supreme Court is set to take up Trump’s arguments of immunity in the case.

In denying Trump’s effort to dismiss the election subversion charges against him in Washington, DC – arguing he had absolute immunity as president – Chutkan wrote in December that the First Amendment “does not protect speech that is used as an instrument of a crime.”

Wakeford argued that Trump’s lies were in furtherance of criminal activity, seeking to overturn election results in the state.

Donald Trump’s attorney argued Thursday that Fulton County prosecutors cannot prosecute the former president only on the basis that his allegations were “false.”

Prosecutors allege that what Trump said is “false in the eyes of the state” so it has “lost all protection to the First Amendment,” Steve Sadow said. But, Trump’s lawyer argued, comments that aren’t factually accurate are still protected under the First Amendment.

“What this court has to decide is the state’s position that fraud or false statements, under these circumstances … is that enough?” Sadow said of the charges.

“The mere fact that it’s false is all that they have,” Sadow said, adding that “there’s no allegation beyond the fact that those statements are made.”

Donald Trump’s attorney argued Thursday that the former president's statements about the 2020 presidential election in Georgia are “core political speech” and therefore he cannot be prosecuted. 

The attorney is arguing that the charges against Trump should be dropped because his actions alleged in the indictment were protected under the First Amendment.

“What do we have here?” Sadow asked. “We have election speech, which is 'protected' from government restriction."

During Thursday’s hearing on Donald Trump’s effort to dismiss the indictment against him in Georgia over alleged election interference on First Amendment grounds, prosecutors argued that it was premature to address free speech arguments.

Donald Wakeford, a prosecutor with the Fulton County district attorney’s office, argued that it was “premature to consider” First Amendment arguments and that such arguments should be put before a jury during trial. Wakeford added that all the communication from Trump in the indictment related to charges in the case are not protected by the First Amendment. 

Meanwhile, Trump’s attorney, Steve Sadow, has argued in a court filing that the charges should be dismissed because free speech in America expressly protects political speech.

“President Trump enjoys the same robust First Amendment rights as every other American,” Sadow wrote in his filing in December. “The indictment here does not merely criminalize conduct with an incidental impact on protected speech; instead, it directly targets core protected political speech and activity. For this reason, it is categorically invalid under the First Amendment.”

As the Fulton County hearing gets underway, here's a reminder of what the Georgia 2020 election case against Donald Trump is about:

An Atlanta-based grand jury on August 14, 2023, indicted Trump and 18 others on state charges stemming from their alleged efforts to overturn the former president’s 2020 electoral defeat. Four people have pleaded guilty. The historic indictment was the fourth criminal case that Trump is facing. The charges, brought in a sweeping investigation led by Fulton County District Attorney Fani Willis, cover some of the most overt efforts by the former president and his allies to meddle in the 2020 presidential election.

Unlike the election subversion charges brought by special counsel Jack Smith, Willis’ case will be insulated if Trump is reelected in 2024; he will not be able to pardon himself or his allies of any state law convictions, nor will he be able to order the state-level prosecutors to withdraw the charges. Trump pleaded not guilty via court filing, waiving an in-court appearance as allowed by Georgia law.

On March 13, 2024, Fulton County Superior Court Judge Scott McAfee dismissed six of the 41 counts from the indictment, including three that applied to Trump. The partial dismissal does not mean that the entire indictment has been dismissed. McAfee’s partial dismissal left most of the sprawling racketeering indictment intact.

Read about the other three criminal cases against Trump.

The hearing in Fulton County over whether the charges in the Georgia election case against former President Donald Trump should be dismissed due to First Amendment protections has begun.

Trump’s lead attorney in Georgia, Stephen Sadow, is expected to argue that the former president’s political speech is protected by the First Amendment, and therefore he cannot be criminally prosecuted.

The judge will also hear arguments over two additional motions to dismiss the charges from Trump’s codefendant, David Shafer. Shafer has argued that he was not part of a broader conspiracy but rather was “attempting to comply with the advice of legal counsel.”

Fulton County District Attorney Fani Willis is not in the courtroom where other members of the prosecution team are assembled.