Trump, Codefendants Push for Pretrial Rulings in Georgia Election Case, Arguing Deficient Indictment

Judge Scott McAfee addresses attorneys during a hearing in the 2020 Georgia election interference case at the Fulton County Courthouse on Dec. 1, 2023 in Atlanta, Georgia. Former President Trump and several co-defendants have all filed multiple motions to quash some or all the indictments against them. John David Mercer- Pool/Getty Images

Fulton County Superior Court Judge Scott McAfee heard arguments on dismissing several criminal counts from a racketeering case charging former President Donald Trump and 14 others with interfering in the 2020 elections.

On the defense side, attorneys for President Trump, former Republican elector David Schafer, former Trump Campaign attorney Robert Cheeley, and former Trump attorneys Ray Smith and John Eastman argued at the hearing.

On Dec. 1, legal counsel argued that the indictment was “deficient,” asking the court to throw out several of the charges.

The judge noted at the beginning of the hearing that he would not be ruling the same day on any of the issues, and the all-day hearing ended with a need to schedule a continuation.

However, Steve Sadow, counsel for President Trump, introduced new case law, prompting the judge to set a deadline for motions that could see a dismissal under the First Amendment.

Charges

In August, President Trump and 18 others had been indicted for their actions to challenge the 2020 election in Georgia. A grand jury found they had violated the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act and handed up a lengthy indictment citing 161 acts of racketeering and 40 other criminal counts. Four defendants have since accepted plea bargains and will be testifying against the remaining 15.

Mr. Cheeley had been charged with violating RICO, conspiracy to commit impersonating a public officer, conspiracy to commit forgery in the first degree, conspiracy to commit false statements and writings, solicitation of violation of oath by public officer, false statements and writings, and perjury, and had filed several motions to dismiss the charges.

Defendants Kenneth Chesebro, formerly an attorney for the 2020 Trump Campaign, and Sidney Powell, an attorney who independently investigated allegations of election fraud, had filed their own demurrers and motions to dismiss charges before accepting plea bargains in October.

President Trump was indicted with violating RICO, solicitation of violation of oath by public officer, conspiracy to commit impersonating a public officer conspiracy to commit forgery in the first degree, conspiracy to commit false statements and writings, conspiracy to commit filing false documents, filing false documents, and false statements and writings. He had adopted several of his codefendants’ motions to dismiss charges and demurrers.

Mr. Shafer had adopted some of the relevant demurrers and additionally filed a motion to dismiss based on the supremacy clause.

Political Speech

Judge McAfee had previously heard First Amendment defenses from attorneys for Ms. Powell and Mr. Chesebro before they pleaded guilty, but had said that these arguments were meant for trial and not the pretrial motions stage.

Mr. Sadow introduced new case law, Hall v. State, in which the facts in the indictment alone were sufficient for the judges to issue a ruling, asking Judge McAfee to reconsider ruling on this point.

“And therefore the indictment should be dismissed,” Mr. Sadow said.

Steve Sadow, attorney for former President Donald Trump(R), speaks during a hearing in the 2020 Georgia election interference case at the Fulton County Courthouse in Atlanta on Dec. 1, 2023. John David Mercer/Pool via Getty Images

For the judge to make such a ruling, the facts have to be undisputed by both parties.

Defense attorneys present all said that, for the purposes of an applied First Amendment challenge, they were willing to accept all the facts in the indictment as true.

State attorney Will Wooten argued that the defense has already clearly disputed the facts, and they should not be allowed to agree to not dispute facts for the purposes of a challenge in this way. He argued that the defendants should then agree to the intent requirement and that their actions were unlawful as well, saying what they were pushing for was “essentially a plea bargain.”

Mr. Sadow said “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, argued that everything in the indictment targeting his client “expressly targets political free speech.”

“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 argued that even if the defendants had said untrue things, or even if they lied knowingly, that would not be enough to constitute a crime as U.S. Supreme Court rulings have consistently erred on the side of letting speech occur, writing several times that counter speech is the solution to false political speech, which certainly occurred during the 2020 elections.

He called the charges “anathema to our history and it’s anathema to the First Amendment,” and said it was “staggering” that state prosecutors did not respond to the arguments in their filings.

Judge McAfee gave the defense attorneys a Dec. 15 deadline to file a brief, and prosecutors a Jan. 2, 2024, deadline for rebuttal.