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Tatyana Tandanpolie

Experts: Trump's 1A argument won't work

A lawyer for Donald Trump argued on Thursday that the 10 felony charges against the former president in his Georgia election interference case should be dismissed, citing First Amendment protections.

That argument came during a nearly two-hour hearing before Fulton County Superior Court Judge Scott McAfee, held in response to a filing from Trump and two pretrial motions from former Georgia Republican Party chair David Shafer, a co-defendant in the sprawling RICO case. Thursday's proceedings marked the first hearing since McAfee declined to remove Fulton County District Attorney Fani Willis from the case over allegations that she improperly benefited from her romantic relationship with special prosecutor Nathan Wade, who has since resigned

“There is nothing alleged factually against President Trump that is not political speech,” Trump's lead attorney Steve Sadow told the court, according to The Associated Press. A sitting president voicing concerns about an election constitutes the "height of political speech," Sadow added, arguing that such speech is protected under the First Amendment even if it includes false statements. 

Legal experts say that argument is distinctly unlikely to hold up against the law.

"The argument we heard yesterday from one of Trump's attorneys was basically, 'You can say whatever you want and it's free speech,' when that's not quite what the law holds," Melissa Redmon, a University of Georgia law professor and former prosecutor in Fulton and Clayton counties, told Salon. "I mean, you can say what you want, but that doesn't mean you don't get prosecuted if that speech is an integral part of criminal conduct."

It's true that, under the First Amendment, making false statements is not a criminal act in itself, Atlanta-based criminal defense attorney Andrew Fleischman told Salon. He cited the 2012 U.S. v. Alvarez Supreme Court decision, which ruled that a 2005 law that criminalized "falsely claiming military honors" was unconstitutional. Such conduct with "an angle for personal gain" could indeed be criminalized, Fleischman elaborated.  

He believed it was "unlikely," however, that a judge would find that decision protected Trump's alleged conduct in the Georgia case, since the Supreme Court in Alvarez specifically held that false statements to government officials could be prosecuted."

Sadow repeatedly argued that the charges against Trump, which include making false statements in various contexts, should be dismissed because the First Amendment protected everything the former president had said. Sadow further claimed that the district attorney's office was seeking prosecute Trump only on the basis that his allegations about the 2020 election were "false," as CNN reports.

“What this court has to decide is the state’s position that fraud or false statements, under these circumstances … is that enough?” Sadow said of the counts against Trump. “The mere fact that it’s false is all that they have. ... There’s no allegation beyond the fact that those statements are made.”

Fulton County prosecutor Donald Wakeford, however, countered Sadow's arguments, refuting the notion that Trump's false statements being false were central to the D.A.'s prosecution.  

“It’s not just that they were false. It’s not that the defendant has been hauled into a courtroom because the prosecution doesn’t like what he said,” Wakeford said, adding that Trump, like any other citizen, is free to voice his opinions and lodge legitimate protests. “What he is not allowed to do is to 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, to make false statements to the government.”

Prosecutors are arguing that Trump's speech in this case is unprotected by the First Amendment "because it's integral to criminal conduct," Fleischman explained. "Sometimes this doesn't work, like when you punish someone for burning an American flag. More often, it does work: Haggling with a prostitute is speech, but it's also part of a crime."

Wakeford also noted that a similar argument raised in Trump's federal election interference case had been rejected. U.S. District Judge Tanya Chutkan, who is overseeing the case brought in Washington, D.C., by special counsel Jack Smith, wrote in a December ruling that “it is well established that the First Amendment does not protect speech that is used as an instrument of a crime.”

“Defendant is not being prosecuted simply for making false statements ... but rather for knowingly making false statements in furtherance of a criminal conspiracy and obstructing the electoral process,” Chutkan continued.

McAfee issued no ruling on Thursday and did not indicate when he may do so. But Redmon and Fleischman both said they believed it's not likely that the judge will rule in Trump's favor on the First Amendment matter. 

"I think that Judge McAfee will find the same" as Chutkan did, Redmon said, adding that Trump's argument "hasn't worked for him in other cases so far." There seems to be "consensus that this would not bar prosecution" of the former president, she concluded. 

Willis charged Trump and 18 other defendants last year under Georgia's expansive anti-racketeering statute, accusing the group of conspiring to overturn Trump's 2020 electoral defeat in the state through a scheme involving the appointment of illegitimate electors, whose false credentials would be forwarded to Congress.

All the defendants were charged with violating the anti-racketeering law, along with numerous other counts. Four defendants from the original group have since reached plea deals with Fulton County prosecutors. Trump and the remaining co-defendants have pleaded not guilty. 

While McAfee has not yet set a trial date, Willis has requested the trial begin in August, the same month that Trump will presumably receive the presidential nomination at the Republican National Convention.

Redmon does not expect the trial to begin earlier than this fall, and said it could take considerably longer than that. The judge still has a number of "routine" pretrial motions and indictment challenges pending, she observed, and potential appeals of those decisions in an unprecedented case such as this are likely to delay the calendar still further.

"You'll see a few more of these before we get to a posture of getting closer to trial," Redmon said, adding that she doesn't expect any delays to result from McAfee's hearings or rulings but from whether he allows appeals of such issues, as he did with the matter of Willis' potential disqualification.

Last week, McAfee approved the Trump team's certificate of immediate review, allowing them to appeal his decision allowing Willis to remain on the case. Trump's attorneys filed that appeal Friday, and the appellate court now has 45 days to determine whether it will take up their challenge. 

Because the case has several "issues of first impression," matters that are unique to the case and don't have much "case law to govern how the judge should decide," Redmon said, she would "not be surprised" if some of McAfee's decisions are appealed and decided even before the court begins jury selection.

"I think that's what's going to delay the beginning of the trial," she said, predicting that it might not begin before the spring of 2025, a full year from now.

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