The charges against former President Donald Trump in the Georgia election interference case seek to criminalize political speech and advocacy conduct that the First Amendment protects, his lawyers argued in a court filing challenging the indictment.
Fulton County Superior Court Judge Scott McAfee plans to hear arguments on that filing and on two pretrial motions filed by former Georgia Republican Party chair David Shafer during a hearing set for Thursday. Lawyers for Shafer argue that he acted legally when he and other state Republicans signed a certificate asserting that Trump won the 2020 presidential election in Georgia and declaring themselves the state’s “duly elected and qualified” electors.
McAfee is forging ahead with the case even as Trump and other defendants have said they plan to seek a ruling from the Georgia Court of Appeals to disqualify District Attorney Fani Willis. The judge earlier this month rejected defense efforts to remove Willis and her office over her romantic relationship with special prosecutor Nathan Wade, but he did give the defendants permission to seek a review of his decision from the appeals court.
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.
Trump’s lawyers wrote in their filing 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.”
Most of the charges against Shafer have to do with his involvement in helping to organize a group of Georgia Republicans to cast Electoral College votes for Trump even though the state’s election had been certified in favor of Biden. The charges against him include impersonating a public officer, forgery, false statements and writings, and attempting to file false documents.
His lawyers wrote in a filing that prosecutors are seeking “to punish as criminal conduct by Mr. Shafer which was lawful at the time.” They argued that Shafer “was attempting to comply with the advice of legal counsel” and the requirements of the Electoral Count Act.
Shafer’s lawyers also ask that three phrases be struck from the indictment: “duly elected and qualified presidential electors,” “false Electoral College votes” and “lawful electoral votes.” They argue that those phrases are used to assert that the Democratic slate of electors was valid and the Republican slate of electors in which Shafer participated was not. They argue that those are “prejudicial legal conclusions” about issues that should be decided by the judge or by 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.”
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.
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