Trump's Georgia election subversion case faces key hearing

Fulton County prosecutor Donald Wakeford pushed back on Donald Trump’s argument that his false claims were protected under the First Amendment, saying that his lies furthered a criminal conspiracy.

“He’s never been prosecuted for lying,” Wakeford said. “He’s been prosecuted for lying to the government.”

Trump’s attorneys are arguing that his false speech is protected by the First Amendment, Wakeford said.

“That’s not what the indictment says,” Wakeford argued. “It’s not just that he lied over and over and over again, as counsel for the defendant points out by listing all of the instances in the indictment.”

Instead, the Indictment alleges that “each of those was employed as part of criminal activity with criminal intentions.”

Fulton County prosecutors and a defense attorney for Donald Trump co-defendant David Shafer bickered Thursday over whether it was appropriate to refer to “fake electors” as part of the 2020 election interference case.

Craig Gillen, an attorney for Shafer, asked the judge to strike the term “fake elector” from the case, saying that the term was “pejorative,” a “legal conclusion” and “really nasty.”

Shafer served as one of the so-called “alternate electors” for Trump in Georgia.

“They want to have [the term] ingrained in the minds of the community and of jurors — a concept that if you are not a Democratic elector … then you are a ‘fake’ elector.”

Prosecutor Will Wooten shot back, saying that “nowhere in the indictment is the term ‘fake elector.’ It does not exist.”

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.”