Judge Denies Trump 1st Amendment Challenge to Dismiss Georgia Election Charges

Former President Donald Trump attends a campaign event in Grand Rapids, Mich., on April 2, 2024. Spencer Platt/Getty Images

Fulton County Superior Court Judge Scott McAfee has denied former President Donald Trump’s motion to dismiss charges under the First Amendment, noting that the way the challenge was brought limited the arguments that could be made.

“Without foreclosing the ability to raise similar as-applied challenges at the appropriate time after the establishment of a factual record, the Defendants’ motions based on First Amendment grounds are denied,” the judge wrote in an April 4 order.

President Trump is being charged along with 14 others of violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act for their actions in challenging the 2020 election results.

He had brought a First Amendment as-applied challenge, arguing that everything he said listed in the indictment was protected by the First Amendment. The defense also touched on making a First Amendment facial challenge, arguing that the charges were overly broad and the statutes may be unconstitutional.

But when such a challenge is made before trial, the only record of facts that can be used is the indictment itself. The allegations must be accepted as fact at this stage.

Much of President Trump’s speech is cited as part of the RICO charge, in which legal acts and truthful speech can be listed in order to show that an “operation” was in place, prosecutors explained.

The First Amendment doesn’t protect speech “integral to criminal conduct, fraud, or speech presenting an imminent threat that the government can prevent,” the judge wrote.

Political speech is protected, as is communication to government officials, but protection “does not extend to allegedly fraudulent petitions,” the judge wrote.

In the indictment, prosecutors allege that all included speech was tied to criminal conduct and the furtherance of a conspiracy.

Defense attorney Steve Sadow argued that President Trump’s speech couldn’t be prosecuted for falsity and that courts have recognized that even false speech must be protected, as free debate cannot be free from error.

However, the judge found that prosecutors brought charges not because the speech was “false” but because President Trump allegedly “knowingly” and “willfully” acted in a way that “impacted matters of governmental concern.”

As for proving that intent, that was a matter for trial, he added.

“The allegations that the Defendants’ speech or conduct was carried out with criminal intent are something only a jury can resolve,” the order reads.

The judge similarly dismissed the facial challenge, finding that the statutes used in the indictment weren’t unconstitutional.

“The statute does not blanketly apply to all instances of false, fictitious, or fraudulent speech but rather is limited only to such “knowingly and willfully false statement[s] that [are] made knowingly and willfully in a matter within a government agency’s jurisdiction,'” he wrote.

Defendants also argued that they were being prosecuted for participating in political campaigning and that such prosecution violates the First Amendment right to association as part of the facial challenge.

The judge rejected the argument, finding that the statutes used don’t violate the freedom of association.

“While the State retains its interest preserving the integrity of the presidential electoral process, the risk that doing so will override any implicated rights to association is legally immaterial,” the judge wrote.

Charges

President Trump is being charged on 10 counts, as the judge recently struck six charges from the indictment, with three applying to President Trump.

Along with the RICO charge, he is charged with conspiracy to commit impersonating a public officer, two counts of conspiracy to commit forgery in the first degree, two counts of conspiracy to commit false statements and writings, conspiracy to commit filing false documents, filing false documents, filing false statements and writings, and false statements and writings.

The charges are in connection to the ballots cast by an alternate slate of electors in the aftermath of the 2020 presidential election in Georgia.

Since the indictment was handed up in August 2023, four defendants have taken plea bargains and are expected to testify against the remaining 15 defendants in the case.

The judge has estimated that trial will last three to five months, with prosecutors needing about four months to present their case and additional weeks for defense witness testimony. The judge has also said the case will likely be severed and the defendants tried in smaller groups, but prosecutors argued they would need to present the same case—all the same testimony and evidence—in each case regardless of how it is severed because of the RICO charge.

Prosecutors have asked for an August trial date, and the judge hasn’t yet set one.

Mr. Sadow argued that the trial can’t be timed to overlap with the general election, as it would force jurors to contemplate voting for or against President Trump while they weigh his guilt or innocence. Meanwhile, he is appealing the judge’s earlier decision to allow Fulton County Fani Willis to continue to prosecute the case, arguing there was forensic misconduct and conflict of interest the judge found to exist but didn’t resolve.