Georgia Trump case: Lawyer argues Trump's remarks 'zenith of protected speech'

FULTON COUNTY, Ga. - Fulton County Superior Court Judge Scott McAfee heard arguments for three pretrial motions filed in connection with Georgia's election interference case against former President Donald Trump and his co-defendants.

Steve Sadow, the lead attorney representing former President Donald Trump, argued that Trump's statements regarding the 2020 election are protected speech under the First Amendment. Sadow described Trump's remarks as "the zenith of protected speech" and emphasized that even false statements are safeguarded by the First Amendment.

Sadow asserted that Trump's expressions reflected legitimate concerns about the validity of the election results in Georgia. He suggested that altering the narrative from "stealing the election" to "legitimate concern about the validity of the election" would better characterize Trump's stance.

Moreover, Sadow contended that it would be unconstitutional to subject Trump or anyone else to trial based on protected speech. He argued that forcing an accused individual, including a former president, to stand trial for such speech violates constitutional rights.

The court also heard from attorney Craig Gillan, who represents former Georgia Republican Party Chairman David Shafer. Shafer faces racketeering charges, including forgery and impersonating a public officer. Gillan argued that Shafer's actions were an attempt to comply with legal counsel's advice.

No decisions were made during today's hearing. It's not clear when Judge McAfee will issue a ruling. 

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Thursday's hearing was the first since McAfee's ruling on the motions to disqualify Fulton County District Attorney Fani Willis and her office from prosecuting Trump and his co-defendants.

McAfee ruled at that time that either Willis or Special Prosecutor Nathan Wade would need to step aside for the case to proceed. A few hours later, Wade submitted his resignation.

After the ruling, a motion requesting a Certificate of Review was submitted and granted by McAfee, meaning the Georgia Court of Appeals will decide if it wishes to review McAfee's decision.

However, McAfee stated that he would continue handling motions as needed before the trial, which has yet to be scheduled.

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Former President Donald Trump's motion

The motion filed by Trump's team on Dec. 18 argues that the criminal solicitation counts should be demurred for failing to allege the oath of office or the portion of the oath they solicited Georgia officials to violate. Additionally, the motion claims the prosecution is attempting to violate their First Amendment rights and that the statutes are unconstitutional as applied.

Trump’s lawyers claim that the crimes their client is charged with fall into five separate areas: Republican elector certificates submitted by Georgia Republicans; a request to the Georgia House speaker to call a special legislative session; a filing in a lawsuit challenging the 2020 presidential election; a January 2021 phone call between Trump and Georgia Secretary of State Brad Raffensperger; and a letter sent to Raffensperger in September 2021.

"The First Amendment, in affording the broadest protection to political speech and discussion regarding governmental affairs, not only embraces but encourages exactly the kind of behavior under attack in this Indictment," Trump’s lawyers wrote.

Prosecutors argued in response that the indictment "is based on criminal acts, not speech." Wherever speech is involved, they wrote, it is "speech integral to criminal conduct, fraud, perjury, threats, criminal solicitation, or lies that threaten to deceive and harm the government."

David Shafer's motion

Shafer's motion requests dismissing all charges against him on the basis that his actions were lawful. Shafer, a prominent figure in Georgia's political landscape, was accused of playing a key role in organizing fake electors in the state. He claims he was trying to comply with legal counsel advice and the former federal Electoral Count Act at the time.

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Regarding the RICO charge against Shafer, the motion argues that even viewing the allegations favorably to the State, the charge is "fatally defective" for failing to establish a "pattern" of alleged racketeering activity.

Shafer also requests striking phrases like "duly elected and qualified presidential electors," "false Electoral College votes," and "lawful electoral votes" from the indictment, claiming the prosecution's indictment is riddled with conclusory legal assertions that should be addressed by the Court or the jury at trial.

Prosecutors argue that Shafer is using "incorrect, extrinsic facts and legal conclusions ... to somehow suggest that he was or may have been a lawful presidential elector at the time of the charged conduct." They agreed that the indictment includes "disputed" and "unproven" allegations but said, "that is not and never has been grounds for the dismissal of an indictment."

Fulton County's election interference indictment

Willis in August obtained an indictment against Trump and 18 others, accusing them of participating in a wide-ranging scheme to try to illegally overturn the 2020 presidential election in Georgia, which the Republican incumbent narrowly lost to Democrat Joe Biden. All of the defendants were charged with violating Georgia’s expansive anti-racketeering law, along with other alleged crimes.

Four people have pleaded guilty after reaching deals with prosecutors. Trump and the others have pleaded not guilty. No trial date has been set, though Willis has asked that it begin in August.

Willis and her team experienced several setbacks in March. Although McAfee did not grant defense requests to remove her from the case, he was sharply critical of her actions and said Wade, her hand-picked lead prosecutor on the case, must step aside for Willis to continue the prosecution. Just days earlier, the judge dismissed six of the 41 counts in the indictment, including three against Trump, finding that prosecutors failed to provide enough detail about the alleged crimes.

The Associated Press contributed to this report.