Prosecutors say Trump team trying to ‘rewrite indictment’ in bid to dismiss Georgia election case

Written by on March 28, 2024

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(ATLANTA) — Attorneys for Donald Trump said that Trump’s comments “calling into question” the election of 2020 were “the height of political speech,” in arguments seeking the dismissal of the former president’s Georgia election interference case Thursday.

Trump’s lawyers were back in a Fulton County courtroom, where they argued that the election interference charges against Trump should be dismissed because his actions related to the 2020 election were “political speech advocacy that lie at the heart of the First Amendment.”

Fulton County Judge Scott McAfee ended the hearing without making any rulings on the motions.

“I don’t think there’s any question that statements, comment, speech, expressive conduct that deals with campaigning or elections has always been found to be at the zenith of protected speech,” Trump attorney Sadow argued, saying that even if Trump’s statements were false, they are protected as a valuable contribution to public discourse.

“The only reason it becomes unprotected in the State’s opinion is because they call it false,” Sadow said.

But prosecutor Donald Wakeford fired back, telling the court that the former president’s speech was part of a conspiracy to commit crimes.

“It’s not just that he lied over and over and over again,” Wakeford said. “It is that each of those was employed as part of criminal activity with criminal intentions. “

Arguing that Trump was part of a “criminal organization,” Wakeford said that his speech was not protected by the First Amendment because he was using his words to commit crimes.

“It’s not that the defendant has been hauled into a courtroom because the prosecution doesn’t like what he said,” Wakeford said. “What he is not allowed to do is employ his speech and his expression and his statements as part of a criminal conspiracy, to violate Georgia’s RICO statute, to impersonate public officers to file false documents, and to make false statements to the government.”

Wakeford also argued that Trump’s motion to dismiss was premature and that it failed to form a basis to dismiss the indictment.

“What we have heard here today is an attempt to rewrite the indictment to take out the parts that are inconvenient and only say, ‘Well, it’s all speech … and he was just a guy asking questions,'” Wakeford said. “All of this is an effort to get Your Honor not to look at the basic fact that this speech, this expression, all this activity is employed as part of a pattern of criminal conduct.”

John Floyd, an expert on racketeering laws with the DA’s office, argued that Trump’s election comments could still be part of a criminal conspiracy even if they could be considered free speech.

“It doesn’t matter whether that’s First Amendment conduct or not … this is a RICO conspiracy case,” Floyd said. “It could be First Amendment protected conduct that also shows there’s a conspiracy in operation.”

Attorneys for Trump co-defendant and former Georgia Republican Party Chair David Shafer, meanwhile, asked the court to strike several phrases from the indictment, including “”duly elected and qualified presidential electors,” “lawful electoral votes” and “false Electoral College votes.”

Shafer’s attorney Craig Gillen argued that the so-called fake electors cannot be defined as “public officers.”

“Just because the fact that they were nominated by their party doesn’t make them a public official,” Gillen said. “This particular count is flawed for the very purpose of these electors cannot be under Georgia law, public officers.”

“By law, by federal law, they did not have the authority,” Gillen said.

A prosecutor for the DA’s office argued that “anything that purports to be someone acting by authority of the government” is a public officer.

“It doesn’t even have to be a real public officer, it doesn’t have to be a state officer,” the prosecutor said. “Anything that purports to be someone acting by authority of the government is a public officer, and that’s certainly what presidential electors do.”

Gillen also sought to have the team “fake elector” removed from the indictment, saying, “They want to have ingrained in the minds of the community and of jurors a concept that if you are not Democratic elector on December the 14th … then you are a fake elector. That is a pejorative term, not necessary for the charges, and should be stricken.”

“The phrase fake elector does not exist in this indictment,” a prosecutor responded.

The hearing in Fulton County, Georgia, marks the first time that the parties in the case have returned to court since the failed disqualification effort against Fulton County District Attorney Fani Willis. Trump and several co-defendants in the case received permission last week to appeal that decision.

Trump himself is not attending the proceedings.

Trump and 18 others pleaded not guilty last August to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia. Four defendants subsequently took plea deals in exchange for agreeing to testify against other defendants.

Earlier this month, Judge McAfee dismissed six of the counts against Trump and his co-defendants, for soliciting the oath of a public officer, due to a technical fault in the indictment. McAfee ordered Thursday’s hearing to consider three motions from lawyers for Trump and Shafer related to the dismissal of the indictment.

In their motion, Trump’s lawyers argued that the First Amendment protects the former president’s conduct related to the 2020 election, and makes the indictment “categorically invalid.”

“President Trump enjoys the same robust First Amendment rights as every other American,” Sadow argued in a filing. “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.”

“Every charge and overt act alleged against President Trump rests on core acts of political speech and advocacy that lie at the heart of the First Amendment,” the filing said.

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