Trump’s Georgia election subversion case faces key hearing

Fulton County Superior Judge Scott McAfee presides over the hearing at the Fulton County Courthouse in Atlanta on Thursday.

The hearing in Fulton County, Georgia, over efforts to dismiss the state election subversion case against Donald Trump and his co-defendant David Shafer on First Amendment grounds concluded after nearly two hours of arguments.

The judge did not rule from the bench, nor did he say when he would rule. The Georgia case is one of four criminal cases Trump is facing while his 2024 presidential campaign is underway — and the stakes are high for the former president and the country.

Here’s a recap of what each side said during today’s hearing:

Trump’s attorney: Trump attorney Steve Sadow argued that the former president’s statements about the 2020 presidential election in Georgia are “core political speech” and he therefore cannot be prosecuted. The attorney repeatedly argued that the charges against Trump should be dropped because his actions alleged in the indictment were protected under the First Amendment. Sadow also claimed that Fulton County prosecutors cannot prosecute the former president only on the basis that his allegations were “false.”

Fulton County prosecutors: Donald Wakeford, a prosecutor with the Fulton County district attorney’s office, said that it was “premature to consider” First Amendment arguments and that such arguments should be put before a jury during trial. Wakeford added that all the communication from Trump in the indictment related to charges in the case are not protected by the First Amendment. Wakeford pushed back on Trump’s argument that his false claims were protected, saying that his lies furthered a criminal conspiracy. “He’s never been prosecuted for lying,” Wakeford said. “He’s been prosecuted for lying to the government.” The prosecutor also pointed to a federal judge’s ruling against Trump’s First Amendment argument in the parallel election subversion case in DC.

Shafer’s attorney: Craig Gillen, an attorney for Shafer, the former chair of the Georgia Republican Party who allegedly acted as a 2020 fake elector in the state, disputed the allegation in the indictment that Shafer was not a “duly” appointed elector. Gillen also put forth an argument that other co-conspirators have also raised in the case: that they were merely following legal advice. 

No trial date yet: A trial date has not been set, but the Fulton County District Attorney Fani Willis still hopes to go to trial before the November election. Willis previously asked for the trial to start in August, and said she may re-up that request. Earlier this week, a judge ruled Trump’s criminal hush money trial will start in April 15.

With reporting from CNN’s Hannah Rabinowitz and Holmes Lybrand.

Former President Donald Trump and attorney Susan Necheles attend a hearing to determine the date of his trial for allegedly covering up hush money payments at Manhattan Criminal Court in New York on Monday.

The Fulton County hearing today in the Georgia election subversion case is only one of the many legal developments former President Donald Trump has faced this week.

On Monday, Trump received both a lifeline from the courts and a trial date for the first criminal trial of a former president in US history.

The twin rulings, which came roughly within an hour of each other, hit the intersection of challenges to Trump’s image and his famed business empire as he seeks a second term in the White House.

Trump’s historic criminal trial in the New York hush money case against him will begin with jury selection on April 15, Judge Juan Merchan said Monday, after a dispute over the late production of documents caused the judge initially to push back the start date. Trump attended the hearing.

For Trump, however, the more significant ruling Monday may have been a New York appeals court allowing him to post a reduced $175 million bond as he appeals the $464 million New York civil fraud judgment against him, his adult sons and his company. Trump told reporters he will cover the bond using cash as a collateral.

Read more about those rulings.

CNN senior legal analyst Elie Honig said he believes that Donald Trump’s attempt to have the Georgia election subversion indictment dismissed on First Amendment grounds will fail given how another judge in Washington, DC, ruled regarding a similar argument.

“Trump’s legal team argues that his charged conduct here is political speech, protected by the First Amendment (even if the speech was false or unpopular). But prosecutors allege that Trump’s speech was part of a larger criminal plan to steal the election and hence not covered by the First Amendment,” he said.

McAfee did not rule from the bench during Thursday’s hearing, nor did he say when he would rule.

Fulton County prosecutor Donald Wakeford pushed back on Donald Trump’s argument that his false claims were protected under the First Amendment, saying that his lies furthered a criminal conspiracy.

“He’s never been prosecuted for lying,” Wakeford said. “He’s been prosecuted for lying to the government.”

Trump’s attorneys are arguing that his false speech is protected by the First Amendment, Wakeford said.

“That’s not what the indictment says,” Wakeford argued. “It’s not just that he lied over and over and over again, as counsel for the defendant points out by listing all of the instances in the indictment.”

Instead, the Indictment alleges that “each of those was employed as part of criminal activity with criminal intentions.”

Attorney Craig Gillen speaks during the hearing in Atlanta on Thursday.

Fulton County prosecutors and a defense attorney for Donald Trump co-defendant David Shafer bickered Thursday over whether it was appropriate to refer to “fake electors” as part of the 2020 election interference case.

Craig Gillen, an attorney for Shafer, asked the judge to strike the term “fake elector” from the case, saying that the term was “pejorative,” a “legal conclusion” and “really nasty.”

Shafer served as one of the so-called “alternate electors” for Trump in Georgia.

“They want to have [the term] ingrained in the minds of the community and of jurors — a concept that if you are not a Democratic elector … then you are a ‘fake’ elector.”

Prosecutor Will Wooten shot back, saying that “nowhere in the indictment is the term ‘fake elector.’ It does not exist.”

An attorney for one of the alleged fake electors in Georgia made several arguments in an effort to get charges in the election subversion case dismissed, including over who was a “duly” appointed elector for Georgia after the 2020 election.

Craig Gillen, an attorney for David Shafer, the former chair of the Georgia Republican Party who allegedly acted as a 2020 fake elector in the state, disputed the allegation in the indictment that Shafer was not a “duly” appointed elector.

In December, when Shafer and others allegedly submitted a false document claiming to be Georgia electors, declaring Trump had won Georgia, “there were no duly elected and qualified presidential electors from the state of Georgia,” Gillen argued Thursday.

Gillen also put forth an argument that other co-conspirators have also raised in the case: that they were merely following legal advice. In his court filing on the matter, Gillen wrote that Shafer was “attempting to comply with the advice of legal counsel” and trying to follow the law that governs the electoral count when he submitted the allegedly fake document declaring Trump had won the state.

Gillen also has argued that, under the law, Shafer never acted as a “public officer,” as the indictment alleges and pushed back on the notion that Shafer committed forgery in signing the elector document.

During today’s hearing, Trump attorney Steve Sadow has repeatedly cited a 2012 Supreme Court case dealing with free speech to bolster his argument that the charges against the former president should be dismissed.

The court, in US v. Alvarez, struck down a law that had made it a crime to falsely claim that military medals were earned. Writing for a majority, then-Justice Anthony Kennedy said that the law violated free speech protections. 

Then-Justice Stephen Breyer wrote in a concurrence that the government could find “less restrictive ways” to “achieve its legitimate objectives.”  Conservative Justices Samuel Alito, Clarence Thomas and Antonin Scalia dissented, saying that the law did not go too far.

Sadow on Thursday invoked both Alito and Breyer.

“Essentially, the state’s position is, ‘because, as alleged what President Trump said, speech-wise, or expressed either through his speech or conduct, which is still freedom of expression, because that’s false in the eyes of the state it’s lost all protection of the First Amendment.’ And the concurring opinion and the dissenting opinion in Alvarez suggests just the opposite. If anything, under the circumstances, it needs more protection, not less protection,” he said.

Kenneth Chesebro and Sydney Powell.

In a hearing this morning, Donald Trump’s lead attorney in Georgia is arguing that the indictment should be dismissed because the former president’s political speech is protected by the First Amendment. 

Previous First Amendment challenges by former Trump co-defendants Kenneth Chesebro and Sidney Powell were unsuccessful.

Chesebro and Powell were two of the former president’s lawyers who later pleaded guilty in exchange for their testimony and cooperation. They had attempted to have the indictment dismissed under the US Constitution’s supremacy clause but failed.

In his denial at the time, Judge Scott McAfee ruled that various case law pointed to facts and evidence needing to be established in a courtroom before a First Amendment challenge can even be considered.

Prosecutor Donald Wakeford speaks during the hearing in Atlanta on Thursday.

Responding to Donald Trump’s argument that the indictment against him in Georgia should be dismissed because his actions were protected by the First Amendment, a prosecutor for Fulton County’s District Attorney pointed to a federal judge’s decision on the same issue in Trump’s parallel election subversion case in Washington, DC.

Chutkan is overseeing the election subversion case against Trump brought by special counsel Jack Smith in DC. The case has been on pause for several months as the Supreme Court is set to take up Trump’s arguments of immunity in the case.

In denying Trump’s effort to dismiss the election subversion charges against him in Washington, DC – arguing he had absolute immunity as president – Chutkan wrote in December that the First Amendment “does not protect speech that is used as an instrument of a crime.”

Wakeford argued that Trump’s lies were in furtherance of criminal activity, seeking to overturn election results in the state.

Donald Trump’s attorney argued Thursday that Fulton County prosecutors cannot prosecute the former president only on the basis that his allegations were “false.”

Prosecutors allege that what Trump said is “false in the eyes of the state” so it has “lost all protection to the First Amendment,” Steve Sadow said. But, Trump’s lawyer argued, comments that aren’t factually accurate are still protected under the First Amendment.

“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 charges.

“The mere fact that it’s false is all that they have,” Sadow said, adding that “there’s no allegation beyond the fact that those statements are made.”

Donald Trump’s attorney argued Thursday that the former president’s statements about the 2020 presidential election in Georgia are “core political speech” and therefore he cannot be prosecuted. 

The attorney is arguing that the charges against Trump should be dropped because his actions alleged in the indictment were protected under the First Amendment.

“What do we have here?” Sadow asked. “We have election speech, which is ‘protected’ from government restriction.”

Attorney Steve Sadow speaks during the hearing in Atlanta on Thursday.

During Thursday’s hearing on Donald Trump’s effort to dismiss the indictment against him in Georgia over alleged election interference on First Amendment grounds, prosecutors argued that it was premature to address free speech arguments.

Donald Wakeford, a prosecutor with the Fulton County district attorney’s office, argued that it was “premature to consider” First Amendment arguments and that such arguments should be put before a jury during trial. Wakeford added that all the communication from Trump in the indictment related to charges in the case are not protected by the First Amendment. 

Meanwhile, Trump’s attorney, Steve Sadow, has argued in a court filing that the charges should be dismissed because free speech in America expressly protects political speech.

“President Trump enjoys the same robust First Amendment rights as every other American,” Sadow wrote in his filing in December. “The indictment here does not merely criminalize conduct with an incidental impact on protected speech; instead, it directly targets core protected political speech and activity. For this reason, it is categorically invalid under the First Amendment.”

Former President Donald Trump's motorcade arrives outside of the Fulton County Jail in Atlanta, Georgia, on Thursday, August 24, 2023.

As the Fulton County hearing gets underway, here’s a reminder of what the Georgia 2020 election case against Donald Trump is about:

An Atlanta-based grand jury on August 14, 2023, indicted Trump and 18 others on state charges stemming from their alleged efforts to overturn the former president’s 2020 electoral defeat. Four people have pleaded guilty. The historic indictment was the fourth criminal case that Trump is facing. The charges, brought in a sweeping investigation led by Fulton County District Attorney Fani Willis, cover some of the most overt efforts by the former president and his allies to meddle in the 2020 presidential election.

Unlike the election subversion charges brought by special counsel Jack Smith, Willis’ case will be insulated if Trump is reelected in 2024; he will not be able to pardon himself or his allies of any state law convictions, nor will he be able to order the state-level prosecutors to withdraw the charges. Trump pleaded not guilty via court filing, waiving an in-court appearance as allowed by Georgia law.

On March 13, 2024, Fulton County Superior Court Judge Scott McAfee dismissed six of the 41 counts from the indictment, including three that applied to Trump. The partial dismissal does not mean that the entire indictment has been dismissed. McAfee’s partial dismissal left most of the sprawling racketeering indictment intact.

Read about the other three criminal cases against Trump.

The hearing in Fulton County over whether the charges in the Georgia election case against former President Donald Trump should be dismissed due to First Amendment protections has begun.

Trump’s lead attorney in Georgia, Stephen Sadow, is expected to argue that the former president’s political speech is protected by the First Amendment, and therefore he cannot be criminally prosecuted.

The judge will also hear arguments over two additional motions to dismiss the charges from Trump’s codefendant, David Shafer. Shafer has argued that he was not part of a broader conspiracy but rather was “attempting to comply with the advice of legal counsel.”

Fulton County District Attorney Fani Willis is not in the courtroom where other members of the prosecution team are assembled.

Judge Scott McAfee presides over a hearing regarding media access at the Fulton County Courthouse August 31, 2023 in Atlanta.

For the first time since a judge ruled that Fulton County District Attorney Fani Willis can continue to oversee the Georgia 2020 election interference case against former President Donald Trump, the focus will return to the details of the sprawling case.

During a hearing this morning, Trump’s lead attorney in Georgia is expected to argue that the indictment should be dismissed because the former president’s political speech is protected by the First Amendment. Trump is not expected to be in attendance for the hearing.

In a motion filed in late 2023, before the unsuccessful efforts by defendants to disqualify Willis from the case emerged, Trump attorney Steve Sadow argued that the peddling of conspiracy theories and claims of widespread voter fraud in the 2020 presidential election were at their core political speech, and therefore Trump never should have been indicted.

“Criminalizing President Trump’s speech and advocacy disputing the outcome of the election—while speech endorsing the election’s outcome is viewed as unimpeachable—is thus blatant viewpoint discrimination,” he added.

Willis recently told CNN she was ready to get the case back on track, after more than two months of disqualification hearings ensued over the romantic relationship she had with her lead prosecutor Nathan Wade. Judge Scott McAfee ruled Willis should not be disqualified from spearheading the case if Wade stepped aside, which he has.

Donald Trump is juggling a busy court and campaign schedule as he defends himself in several criminal cases while also vying for a second term in the White House.

The former president’s criminal hush money trial is expected to start on April 15. He faces charges stemming from his alleged falsification of business records with the intent to conceal illegal conduct connected to his 2016 presidential campaign.

By the time the Republican National Convention rolls around in mid-July, voters and Trump will already know the former president’s fate in at least one of his four criminal cases.

Here’s a look at his colliding calendar:

Former President Donald Trump speaks during an awards ceremony held at the Trump International Golf Club on March 24, in West Palm Beach, Florida.

Donald Trump is the first former president in US history to face criminal charges, and with his third presidential bid under way for 2024, the stakes are high for both him and the country.

Catch up on what you need to know about Trump’s four criminal cases ahead of today’s hearing in the Georgia case:

Hush money case: Trump was first indicted in March 2023 by the Manhattan district attorney on state charges related to a hush-money payment to an adult-film star in 2016. Prosecutors allege Trump was a part of an illegal conspiracy to undermine the integrity of the 2016 election. Further, they allege he was part of an unlawful plan to suppress negative information, including the $130,000 payment. Trump has pleaded not guilty.

Classified documents: Trump was indicted in June 2023 by a federal grand jury in Miami for taking classified national defense documents from the White House after he left office and resisting the government’s attempts to retrieve the materials. Both Trump and his aide Walt Nauta have pleaded not guilty. On July 27, the special counsel charged Trump with three new counts, including one additional count of willful retention of national defense information.

Election interference: Trump’s third indictment was a result of special counsel Jack Smith’s investigation into alleged efforts by the former president and his allies to overturn the 2020 election. The indictment alleges Trump and a co-conspirator “attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them … to delay the certification” of the election. It also alleges another co-conspirator pushed then-Vice President Mike Pence to “violate the law” to delay President Joe Biden’s victory. Trump pleaded not guilty to all four counts.

Fulton County case: An Atlanta-based grand jury on August 14, 2023, indicted Trump and 18 others on state charges stemming from their alleged efforts to overturn the former president’s 2020 electoral defeat. Four people have pleaded guilty. The charges, brought in a sweeping investigation led by Fulton County District Attorney Fani Willis, cover some of the most overt efforts by the former president and his allies to meddle in the 2020 presidential election. Trump pleaded not guilty. On March 13, 2024, a judge dismissed six of the 41 counts from the indictment, including three that applied to Trump.

Fulton County District Attorney Fani Willis takes the stand during a hearing in the case of the State of Georgia v. Donald John Trump at the Fulton County Courthouse on February 15, in Atlanta. 

Fulton County District Attorney Fani Willis told House Republicans that her office would turn over subpoenaed documents as they are able, but that she would not divert resources from her office’s “primary purpose” to prosecute crime, according to a letter obtained by CNN. 

GOP Rep. Jim Jordan, chairman of the House Judiciary Committee, complained earlier this month that Willis’ office had failed to adequately respond to the committee’s subpoena issued in February.

“This office is in the process of producing relevant documents to you on a rolling basis,” Willis said in her March 25 letter to Jordan, writing that her office had already shared “substantial information” requested by House Republicans but that his “extensive document demands” in less than two months were unreasonable.

Jordan had threatened to hold Willis in contempt of Congress for not fully complying with the subpoena for documents as part of the committee’s investigation into her office’s use of federal funds. Republicans on the Judiciary Committee have long sought to undermine the credibility of Willis’s 2020 election case against former President Donald Trump and multiple co-defendants. 

Judge Scott McAfee will also hear arguments this morning from one of Donald Trump’s co-defendants in the case, David Shafer, the former chairman of the Georgia Republican Party.

In the indictment, prosecutors allege Shafer acted as the point man for the fake electors scheme, coordinating with co-conspirators and reserving the room to illegitimately certify Trump as Georgia’s 2020 election winner.

In their filing, Shafer’s attorneys argued that in nearly all of the conduct for which Shafer is charged, he was only “attempting to comply with the advice of legal counsel,” and was not part of a broader conspiracy.

“Neither the emails or text messages, nor Mr. Shafer’s reservation of a room at the State Capitol, constitute ‘racketeering activity’ for the purposes of RICO,” Shafer’s attorneys wrote.

Sometimes when a president needs a hand, only another president – or another two – will do.

President Joe Biden’s bid for a second term and reelection campaign coffers will get a hefty boost on Thursday when he’s joined in New York by his two immediate predecessors as Democratic presidents, Barack Obama and Bill Clinton. The lucrative fundraiser in New York will send a message of commitment from the 42nd and 44th presidents for the 46th’s bid to prevent the 45th president, Donald Trump, from returning as the 47th.

Biden’s reelection campaign announced Thursday that this evening’s fundraiser has raised over $25 million – building on an already-impressive war chest as Biden heads into a general election rematch against Trump.

Obama, especially, has become increasingly involved in Biden’s reelection campaign in recent weeks, motivated by alarm at the possibility that his friend and former vice president will be forced, like he was, to hand the Oval Office to Trump. CNN’s MJ Lee and Jeff Zeleny reported Wednesday that Obama was in the White House for a working visit just last week. Sources said Biden has also been in regular touch with Clinton, who was in the White House when the current president was a major Senate voice on foreign policy and judicial issues.

The appearance of the three men together at Radio City Music Hall will conjure a moment of symbolism that will underscore the stakes of the election. Two Democratic presidents who won second terms are uniting to try to usher a successor, who is older than both of them, into the same rarified political air.

It will also mark a rare occasion when four presidents are in one area, other than Washington, on the same day. Trump, who is permanently estranged from the ex-presidents’ club because of his extreme behavior, is due on Long Island on Thursday to attend a wake for slain New York City Police Office Jonathan Diller.