Judge rejects effort to dismiss Trump Georgia case on First Amendment grounds

A Georgia judge on Thursday denied an effort by former President Donald Trump and 14 others to dismiss the 2020 election-related case in Fulton County, ruling that the First Amendment does not protect the defendants from prosecution.

In a 14-page order, Judge Scott McAfee rejected the argument put forth by the defendants that the charges violate the First Amendment’s protections of political speech and the right to petition Congress.

“[F]ree speech — including political speech — is not without restriction,” McAfee wrote. “These excluded categories include speech integral to criminal conduct, fraud, or speech presenting an imminent threat that the Government can prevent.”

Trump and 18 other co-defendants were indicted last year on state charges by a grand jury in Fulton County, the culmination of an investigation by District Attorney Fani Willis and her office. Prosecutors alleged the defendants worked to overturn the election results in Georgia after Trump lost the state in 2020. Trump and most of the other defendants have pleaded not guilty and denied wrongdoing, while several others have taken plea deals.

The former president faces 10 felony charges. McAfee dismissed three against him in an earlier decision.

Former President Donald Trump speaks during a campaign event in Green Bay, Wisconsin, on Tuesday, April 2, 2024.
Former President Donald Trump speaks during a campaign event in Green Bay, Wisconsin, on Tuesday, April 2, 2024.

Daniel Steinle/Bloomberg via Getty Images

Defense attorneys challenged the state laws underpinning the charges, saying the alleged violations were protected political speech. McAfee ruled that the First Amendment’s protections do not apply, since the speech in question is “alleged to have been made in furtherance of criminal activity.”

“Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity,” the judge wrote.

Steve Sadow, an attorney for Trump, said the defendants “respectfully disagree with Judge McAfee’s order and will continue to evaluate their options regarding the First Amendment challenges.” Sadow noted that McAfee left the door open for the defendants to raise the First Amendment issue further down the line. 

In his order, McAfee said only a jury can resolve whether Trump and his allies’ speech or conduct “was carried out with criminal intent,” as prosecutors have claimed.

Still, he added that “accepting the allegations as true for the purposes of this pretrial challenge, as the court must, the speech alleged in this indictment is integral to criminal conduct and categorically excluded from First Amendment protections.”

McAfee said defense attorneys have not presented “any authority that the speech and conduct alleged” is constitutionally protected political speech.

The sprawling racketeering case brought by Willis and her office has picked back up after an effort spearheaded by one of Trump’s co-defendants to disqualify the district attorney from the prosecution derailed it for several weeks.

Michael Roman, a longtime GOP operative, accused Willis of engaging in an improper romantic relationship with one of her deputies, Nathan Wade, and alleged she financially benefited from it. Trump and seven others joined Roman’s bid to remove Willis and the district attorney’s office from the case, but McAfee ultimately declined to do so.

The judge instead said Willis could remain on the case so long as Wade resigned, which he did on the heels of McAfee’s decision.

Willis and Wade acknowledged they were romantically involved, but said their relationship began after Wade was hired in November 2021 to work on the case involving Trump. They both forcefully denied wrongdoing, but the allegations cast a shadow over the prosecution.

The former president and the seven co-defendants asked the Georgia Court of Appeals last week to review McAfee’s decision not to disqualify Willis and her office. The court has 45 days to decide whether to hear the appeal.

The Georgia case is one of four criminal prosecutions brought against the former president. A trial in Manhattan, where Trump faces 34 felony counts for falsifying business records, is set to begin this month.

His conduct surrounding the 2020 election also led to federal charges in Washington, D.C., brought by special counsel Jack Smith. The fourth prosecution, also brought by Smith in federal court in South Florida, stems from Trump’s alleged mishandling of sensitive government documents after he left the White House in January 2021.

Trump has pleaded not guilty to all charges and has claimed that the prosecutions are politically motivated. 

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