Judge Scott McAfee of Fulton County Superior Court oversaw proceedings seeking the dismissal of criminal counts in a racketeering case involving former President Donald Trump and 14 others, accused of meddling in the 2020 elections.
Defense attorneys, including those representing President Trump, David Schafer, Robert Cheeley, Ray Smith, and John Eastman, argued against the indictment’s validity, urging the court to dismiss multiple charges during the Dec. 1 hearing.
Despite no immediate rulings, a subsequent session was scheduled after the extensive hearing. Notably, Steve Sadow, President Trump’s counsel, introduced new legal precedents, prompting the judge to set a deadline for motions potentially leading to dismissal based on First Amendment grounds.
In August, President Trump and 18 others faced indictment for contesting the 2020 Georgia election. The grand jury, citing violations of the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act, charged them with 161 acts of racketeering and 40 criminal counts. Four defendants accepted plea bargains, agreeing to testify against the remaining 15.
Facing RICO, conspiracy, forgery, and other charges, Mr. Cheeley sought dismissal through filed motions. Defendants Chesebro and Powell, linked to the Trump Campaign and election fraud investigations, initially moved to dismiss before accepting plea bargains in October.
President Trump, charged with RICO violation and false documents filing, adopted co-defendants’ motions to dismiss charges. Mr. Shafer also embraced relevant demurrers, filing a dismissal motion based on the supremacy clause.
Judge McAfee, having heard First Amendment defenses for Powell and Chesebro pre-guilty pleas, indicated these arguments were reserved for trial, not pretrial motions.
Mr. Sadow referenced recent case law, specifically Hall v. State, suggesting that the facts presented in the indictment alone justified a ruling. He urged Judge McAfee to reconsider his position.
“And therefore the indictment should be dismissed,” stated Mr. Sadow.
For the judge’s decision, both parties must concur on the undisputed facts.
Defense attorneys confirmed their willingness to acknowledge all indictment facts as true for the purposes of the First Amendment challenge at hand.
State attorney Will Wooten contended that the defense had previously disputed the facts and could not now agree to accept them solely for the purpose of a challenge. He accused the defendants of essentially seeking a plea bargain.
Mr. Sadow proposed, “We will agree, for the purposes of a First Amendment challenge, that the allegations, facts in the indictment are to be taken tru in that challenge and that challenge alone.”
Christopher Anulewicz, representing Mr. Cheeley, contended that everything targeting his client in the indictment “expressly targets political free speech.”
He contested the charges, asserting that even if the defendants knowingly made untrue statements or lied, it wouldn’t amount to a crime. Emphasizing U.S. Supreme Court precedents supporting speech, he underscored counter speech as a remedy for false political statements, a prevalent occurrence during the 2020 elections.
“The state is attacking the challenges, speech, concerns, and the efforts that the defendants here took with regard to their belief in the 2020 presidential election,” he said. “The state wants to jail them … for not accepting those results and not agreeing that Georgia’s vote counting process was pristine.”
He criticized the charges as being at odds with history and the First Amendment, expressing worry that state prosecutors overlooked the arguments presented in their filings.
He called the charges “anathema to our history and it’s anathema to the First Amendment,” and then added it was “staggering” that state prosecutors did not respond to the arguments in their filings.
Judge McAfee set a Dec. 15 deadline for defense attorneys to file a brief and a Jan. 2, 2024, deadline for prosecutors to respond.
