The legal team of former Black Voices for Trump leader Harrison Floyd intends to defend him against allegations that he unlawfully participated in an election subversion plot in Fulton County, Georgia, by showing that former President Donald Trump won the state’s 2020 presidential election.
Mr. Floyd was charged on Aug. 14 alongside the 45th president and 17 other co-defendants with violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act, conspiracy to commit solicitation of false statements and writings, and influencing witnesses.
He was the only defendant to spend time in jail because of the indictment before he was released on bond on Aug. 30.
“Your Honor, this case isn’t about whether you or I think that Donald Trump lost the election. It’s about what Mr. Floyd believed at the time,” Chris Kachouroff, one of Mr. Floyd’s defense attorneys, said at a Nov. 3 hearing before Judge Scott McAfee.
Opening the Door
The judge ordered the hearing in response to motions to quash three sweeping subpoenas Mr. Floyd’s legal team served to the office of Georgia Secretary of State Brad Raffensperger, the Fulton County Clerk of Courts, and the Fulton County Board of Elections.Materials the attorneys requested included the ballot images and envelopes for all absentee ballots cast in the 2020 general election, all absentee ballot application forms, reports from the Dominion voting machines used, and all laptops and poll pads used by election workers, along with other documents, files, and drives.
Attorneys also requested all documents and recordings concerning the secretary of state’s post-election investigation into allegations of election fraud.
“The state chose to open this door,” Mr. Kachouroff said. “It is a broad and sweeping complaint. They opened the door wide open for us to walk in and ask for these things.”
The attorney noted that the 98-page indictment repeatedly asserts as fact that President Trump lost the 2020 election in Georgia, and the charges against Mr. Floyd are predicated on that claim. But if Fulton County District Attorney Fani Willis is wrong and President Trump actually won the election, then Mr. Floyd can’t be guilty of soliciting “false statements and writings” that conveyed as much.
The indictment also maintains that Mr. Floyd and the other co-defendants were aware that President Trump lost the election and that their actions constituted an unlawful conspiracy to change the results in his favor.
That assertion would also be undermined by proof that the former president won or even proof that the election’s outcome is uncertain, according to Mr. Kachouroff. And the subpoenaed materials are likely to contain that proof, he argued.
“We could make that argument that he’s innocent no matter what happened,” he noted. “And, of course, we would. We’re defense attorneys; that’s what we do.
Pushback
Mr. Raffensperger’s office, represented by Jackson Sharmon III, has argued that the broad scope of materials requested by the defense would place an “undue burden” on an entity that isn’t even a party in the case.Contesting the subpoena before the judge, Mr. Sharmon said the requested documents contain “little, if anything,” relevant to Mr. Floyd’s defense.
“If the purpose is state of mind, his intent, the documents we would produce—which he didn’t know about, he didn’t have—are not going to have any effect on the determination of his intent at the time he allegedly undertook the acts that are in the indictment,” Mr. Sharmon said.
He also challenged the defense’s argument that proving President Trump won the election would necessarily erase the possibility that Mr. Floyd had criminal intent.
“With all due respect, I don’t think that’s the case,” Mr. Sharmon said. “That’s not the way intent, in a criminal case, is adjudicated.”
Attorneys for Fulton County said it could take months to produce the requested materials. And in terms of relevance, they pointed to Mr. Kachouroff’s admission that he could argue his client’s innocence even without the requested materials as evidence that they weren’t needed.
But for Mr. Kachouroff, the state’s arguments didn’t negate his client’s right to those materials.
“Harrison Floyd is looking at between eight and 33 years,“ he said. ”That’s his liberty interest. Courts take liberty interest very seriously so that liberty interest overcomes any burden the state has to be set back by a month or two or three.”
By the end of the hearing, the three subpoenas were reduced to two as it was revealed that the board of elections didn’t possess any of the requested materials, which are held by the clerk of courts.
The judge, expressing concern over the potential disclosure of voters’ personally identifiable information, said more information was needed to determine what exactly was being requested, the extent of the state’s burden in producing it, and whether a protective order was needed.
