ATLANTA — Lawyers for former President Donald Trump were in court in Atlanta on Thursday morning, arguing his charges in the Georgia 2020 election RICO case should be dismissed on First Amendment grounds.
A motions hearing saw Steve Sadow, Trump's attorney, spar with prosecutors over a constitutional question: how far does the First Amendment's protection of speech go?
"Political speech is the most protected; it's usually referred to as the core of the First Amendment," said Emory University Law professor John Acevedo.
But the legal expert noted that protection is not limitless. The core issue of Thursday's hearing was where those limits should be drawn.
Sadow claimed that all of the former president's alleged criminal acts were actually political speech about the 2020 election that is protected by the First Amendment.
"All of the allegations involved expressive conduct or speech," Sadow said.
The defense attorney argued that protection should compel Fulton County Superior Court Judge Scott McAfee to dismiss the charges against Mr. Trump.
"It's unconstitutional to force an accused, be it the president of the United States, former president, or anyone else, to stand trial on protected speech," Sadow said.
Prosecutors countered that the First Amendment's protections are not limitless.
"Speech integral to criminal conduct is not protected," said Donald Wakeford, a chief senior district attorney in the Fulton County D.A.'s Office.
The prosecutor argued that Trump's speech falls into that unprotected category.
"(It's) not just that he lied over and over and over again... it's that each of those was employed as part of criminal activity with criminal intentions," Wakeford said.
John Floyd, a special prosecutor and noted RICO expert, also added a rebuttal for the state to Sadow's arguments that speech is criminalized within the indictment's listed "overt acts."
"The purpose of an overt act is to show the conspiracy is in operation. It is not a separate crime, it doesn't have to satisfy the elements, doesn't have to be pled with that level of detail... and so to say we can't mention this particular act or this particular conduct because it's not a crime or it's protected by the First Amendment, the answer to that is actually so what?" Floyd said. "It could be legal conduct, it could be First Amendment protected conduct that also shows there's a conspiracy in operation, and that's -- as long as it serves that purpose, it's fine."
The court also heard arguments from Craig Gillen, an attorney representing Trump co-defendant David Shafer (the former chairman of the Georgia Republican Party), on two motions seeking to dismiss the charges against him and remove language related to "false" electors from the indictment.
Judge Scott McAfee has not yet ruled on any of the motions discussed in court Thursday.
You can re-watch 11Alive's stream of the proceedings below, as well as the specific portion regarding the First Amendment argument in the video player above this story. 11Alive's updates from during the proceedings are also below.
LIVE UPDATES
11:38 a.m. | Court is adjourned. Judge McAfee did not indicate when he might have an order on anything that was before the court today.
11:20 a.m. | Attorneys for the State, addressing the Shafer arguments, asserting that Georgia law does explicitly establish an "office of presidential elector."
11:03 a.m. | And to go back to the First Amendment arguments -- again, no decision likely right here today from Judge McAfee. Unclear when he might issue a written order (though it's possible he'll address a timeline at the end of proceedings).
11:01 a.m. | Craig Gillen is arguing for Shafer, who was charged as impersonating an officer for his role in the submission of the "alternate" slate of electors for Trump to the Electoral College. Gillen's argument is basically that the elector role is really not that of a public officer.
10:59 a.m. | Worth going back to Sadow for a second, who concluded his argument by again referring to the indictment and asserting that it does not charge Trump on any act other than acts of speech: "What I'm suggesting is if all of the overt acts are nothing more than core political speech or expressive conduct and nothing else is alleged which is not protected by the First Amendment, then you have an insufficient basis for which he has been indicted."
10:55 a.m. | Attorney Craig Gillen is arguing for Shafer's motions.
10:51 a.m. | Appears the First Amendment matter has been argued through and they're moving on to David Shafer's motions.
10:49 a.m. | Sadow now rebutting what Floyd said.
10:48 a.m. | John Floyd, a noted RICO expert, adds for the state an argument that Sadow's arguments that speech is criminalized within the indictment as referenced in overt acts is not true.
"The purpose of an overt act is to show the conspiracy is in operation. It is not a separate crime, it doesn't have to satisfy the elements, doesn't have to be pled with that level of detail... and so to say we can't mention this particular act or this particular conduct because it's not a crime or it's protected by the First Amendment, the answer to that is actually so what?" Floyd said. "It could be legal conduct, it could be First Amendment protected conduct that also shows there's a conspiracy in operation and that's -- as long as it serves that purpose, it's fine."
10:43 a.m. | More Wakeford: It's "not just that he lied over and over and over again... it's that each of those was employed as part of criminal activity with criminal intentions."
Says Sadow wants to frame the indictment as "it's all speech... he (Trump) was just a guy asking questions... and not part of an overarching criminal conspiracy trying to overturn election results for an election he did not win -- by violating the RICO statute, by making false statements to the government, by filing false documents, by impersonating officers and doing a whole host of other activities harmful, in addition to the falsity of the statements employed to make them happen."
10:40 a.m. | Wakeford further argues the filing false documents charge is "not just hat you've made a false statement," but that you've sworn to false statements to a court "which does harm to the judicial system."
"As each and every charge in the indictment demonstrates, these statements are part of criminal conduct that is larger than just the false statement on its own."
10:38 a.m. | Wakeford argues Trump is "not being prosecuted for lying, he's being prosecuted for lying to the government -- an act which is illegal because it does harm to the government."
10:36 a.m. | Wakeford for the State now speaking again, refers to the federal election subversion case being overseen by Judge Tanya Chutkan.
"Let me address first the elephant in this courtroom, Judge Chutkan in D.C. has evaluated all these arguments under Supreme Court precedent already, I'd refer you to that court's analysis, I'm hardly going to improve upon the findings of a federal judge."
10:34 a.m. | Another tidy Sadow summary: "Take out the political speech, no criminal charges. Political speech disagreed with, basis for all charges. I think that is the best way for me to sum up where our position is."
10:33 a.m. | More Sadow: "When you're dealing with that speech, that political speech, you're best to deal with it pushing forth a counterview of truth -- not prosecuting the speechmaker or the person that is articulating his political views. Here we've done just the opposite, we've decided t hat because those views are unpopular, and in State's opinion false, we must prosecute them to stop them from happening again, which is the essence why it's unconstitutional as applied because that's not what the law says."
10:30 a.m. | A little tidier summary from Sadow: "All of the allegations involve expressive conduct or speech."
10:28 a.m. | Sadow goes into the core of his argument, which is that the charges against Trump in the RICO indictment solely target the content of his political speech during the time after the 2020 election.
He argues the State is interpreting the crime as "we have a goal -- steal the election in an unlawful fashion."
"I say change that for a second to 'legitimate concern about the validity of the election.' If that was the way you focused on it, would what President Trump said on those counts be protected speech? And the answer is it has to be."
He adds in his argument that "the only reason it becomes unprotected" is the State says it's false, which he argues is disallowed under precedent.
"It cannot be content based, it has to be contextual, and this is a core political value being addressed -- elections and campaigning."
10:17 a.m. | Sadow is making an argument about the standards for how a First Amendment challenge may be brought.
10:11 a.m. | Wakeford argues even if it is the time to address the First Amendment now, the challenge would need to be dismissed because the indictment criminalizes not Trump's speech or expression as expressed but asserts his speech and expression were conducted in furtherance of crimes.
10:08 a.m. | Wakeford is arguing its premature to address the First Amendment challenge at this point.
10:07 a.m. | Donald Wakeford, arguing the First Amendment issue for the State, is now speaking with Judge McAfee, still on the matter of whether this is the right time to address the First Amendment challenge.
10:05 a.m. | Judge McAfee and Sadow are beginning by addressing the standards and precedents for whether the First Amendment challenge is appropriate at this point in the legal proceedings.
10:04 a.m. | Attorney Steve Sadow is beginning arguments on behalf of President Trump.
Rest of story below
Trump's lawyers filed a brief in December arguing that the Georgia case "seeks to criminalize content-based, core political speech and expressive conduct." You can see that brief below:
The document, a post-hearing briefing, supports arguments made at an original hearing on Dec. 1 at which Trump's attorneys argued to have the case dismissed. You can re-watch that hearing in full here.
The filing lays out five central elements of the case and argues Trump's conduct with regard to each of them is protected political speech.
Those elements include the "alternate" electors scheme, Trump's calls for a special session of the Georgia General Assembly, a verification Trump made as part of a lawsuit challenging the election, the Jan. 2, 2021 call to Sec. of State Brad Raffensperger and a Sept. 17, 2021 letter to Raffensperger.
"Every single alleged overt act listed and count charged against President Trump seeks to criminalize content-based, core political speech and expressive conduct," Trump attorney Steve Sadow wrote in the brief.
Sadow argued the court should dismiss the indictment before the trial begins.
"The speech Fulton County prosecutors seek to criminalize is precisely the kind of core political speech the Founders envisioned when carefully crafting those freedoms to ensure that, for the rest of time, U.S. citizens would not fall prey to mass repression and the manipulation or suppression of information as a means of control," Sadow wrote.
It's not clear if Judge Scott McAfee will issue any sort of ruling on the matter on Thursday. So far in the case he has typically taken further time to weigh arguments before issuing written orders, rather than making determinations from the bench.
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