Attorney argues First Amendment protects Trump from election interference charges by Fani Willis

A judge held a hearing Thursday to examine former President Donald Trump’s argument that Fulton County District Attorney Fani Willis’s case against him in Georgia should be dismissed because Trump’s actions cited in her indictment were protected by the First Amendment.

Judge Scott McAfee heard arguments from both Trump’s attorney and prosecutors about the matter, but the judge gave no indication as to where he stood on it or when he would issue a decision.

Trump’s attorney Steve Sadow urged McAfee to consider that Willis’s indictment, in which she alleged Trump violated Georgia’s racketeering law by illegally conspiring to overturn the 2020 election, was “ripe” for a First Amendment challenge.

McAfee had already denied similar motions brought by co-defendants Kenneth Chesebro and Sidney Powell, determining that dismissing the indictment on First Amendment grounds at this stage was premature.

On Thursday, Sadow argued that Willis’s indictment was built entirely on actions shielded by protections for freedom of speech and expression under the Constitution.

McAfee said, however, that “some crimes can be achieved solely through speech, though, [such as] terroristic threats, solicitation.”

“Why is that not what’s happening here as alleged?” McAfee asked.

“I don’t think there’s any question that statements, comments, speech, expressive conduct that deals with campaigning or elections has always been found to be at the zenith of protected speech,” Sadow replied.

Willis’s indictment was sweeping and included 161 actions that she alleged amounted to a racketeering violation by Trump and 18 co-defendants. She alleged that Trump, in particular, falsely declared he won the 2020 election, helped arrange for an alternate set of electors in Georgia, and helped create and deliver a fraudulent certificate of votes to state officials.

“One must determine immediately whether that constitutes core political speech, and I suggest that it does,” Sadow said in reference to Trump’s speech and actions cited in the indictment.

Neither Trump nor Willis were present at the hearing.

Donald Wakeford, a prosecutor appearing on behalf of Willis, noted how Judge Tanya Chutkan in Washington, D.C., had already ruled against the same First Amendment argument in Trump’s federal election interference case. Chutkan declined to dismiss that case on First Amendment grounds after Trump argued his actions in the indictment there reflected genuine concerns about the election that he had a right to vocalize. Chutkan said the argument was better suited for a jury to consider at trial.

Wakeford said he was “hardly going to improve upon the findings of the federal judge.”

But he noted that the First Amendment argument should go beyond determining whether Trump was well-intentioned or whether he knowingly made false claims and committed fraudulent actions.

“It’s not just that he lied over and over and over again,” Wakeford said. “It’s that each of those was employed as part of criminal activity with criminal intentions” for which the First Amendment did not provide cover.

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Trump is facing 10 charges in the case related to the 2020 election. McAfee has not scheduled a trial yet, and one may not take place for several months. The pretrial process was derailed by roughly two months beginning in January, when Trump and others called for McAfee to disqualify Willis from the case over an undisclosed relationship she had with one of the prosecutors working on it.

McAfee determined that Willis displayed a “tremendous lapse in judgment” but said she could continue overseeing the case so long as she terminated the prosecutor. Trump and other co-defendants have appealed his decision, and the Georgia Court of Appeals is now weighing whether to take up the argument.