Trump lawyers argue that even his ‘lies’ are protected in Georgia election interference case

An attorney for former President Donald Trump argued in a Georgia court on Thursday that the election interference charges in the state against him should be thrown out because his statements are protected by the First Amendment.

Fulton County Superior Court Judge Scott McAfee heard arguments from Trump attorney Steven Sadow, who claimed that without Mr Trump’s statements, no charges would have been brought.

The prosecution for the state argued that Mr Trump’s lies were used to push a criminal conspiracy and that Mr Trump has not been charged for lying, “he has been charged for lying to the government” as part of a “pattern of criminal conduct”.

Mr Sadow filed a motion late last year arguing that Mr Trump’s false claims of election fraud were political speech, and as such, he should never have been indicted in the first place.

Mr Trump was indicted in the state alongside 18 others last August in Fulton County District Attorney Fani Willis’ investigation into the attempts to overturn the 2020 election results in the state. In 2020, President Joe Biden became the first Democrat to win Georgia in a presidential race since Bill Clinton in 1992.

Mr Sadow wrote late last year that “The core political speech and expressive conduct alleged in this indictment against President Trump are protected from government regulation and thus criminal prosecution by the State”.

“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 at the time.

The case got a bit of a restart on Thursday after two months of hearings into Ms Willis’ relationship with former lead prosecutor Nathan Wade, who has stepped aside from the case, leading to Judge McAfee ruling that Ms Willis may continue leading the state’s case.

Attorneys Kenneth Chesebro and Sidney Powell, who were indicted alongside Mr Trump but who severed their cases from the rest of the defendants, also made First Amendment arguments in their individual cases – efforts that failed. They both pleaded guilty and agreed to testify and cooperate with the prosecution.

Prosecutor Donald Wakeford said on Thursday that the charges in this case “are about falsity ... employed as part of a pattern of criminal conduct in numerous ways”.

“I think it requires dismissal or denial at this stage,” he argued. “There's facts that have to be established.”

Meanwhile, Mr Sadow argued that the state’s position is that because what Mr Trump said is false “in the eyes of the state, it’s lost all protection to the First Amendment ... If anything under the circumstances it needs more protection, not less protection”.

“What the state wants to do is say, ‘We have a goal. We have an objective here that we have put forward – steal the election in an unlawful fashion’,” he added. “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,” Mr Sadow continued, arguing that it would be protected speech “because the only thing that makes it fraudulent its a state saying it’s false”.

“The only reason it becomes unprotected in the state’s opinion, is because they call it false,” he claimed. “There is nothing alleged factually against President Trump that is not political speech.”

“Take out the political speech, no criminal charges,” he said.

Mr Wakeford responded by arguing that Mr Trump “was 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 activity which is harmful, in addition to the falsity of the statements employed to make them happen”.

“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. He is free to make statements and to file lawsuits and to make other legitimate protests,” Mr Wakeford said. “What he is not allowed to do is employ his speech and his expression, and his statements as part of a criminal conspiracy to violate Georgia’s RICO statute.”

“This is all alleged as part of a pattern of criminal conduct and not protected by the First Amendment. Any argument otherwise is just to try to pretend like that’s not true,” he concluded.

Mr Wakeford also noted that DC federal Judge Tanya Chutkan has already ruled on the First Amendment issue, saying that Mr Trump’s speech isn’t protected. Judge Chutkan is in charge of the election subversion case in Washington DC brought by Special Counsel Jack Smith. The case remains on pause as Mr Trump has taken his immunity claims all the way to the Supreme Court.

Judge Chutkan wrote late last year that speech “that is used as an instrument of a crime” isn’t protected by the First Amendment.

Subsequently in the hearing, an attorney for one of the alleged fake electors in Georgia, former state Republican Party chair David Shafer, rejected the notion that Mr Shafer wasn’t “duly” elected.

Attorney Craig Gillen argued on Thursday that when Mr Shafer and others are alleged to have submitted fake paperwork to become electors, “there were no duly elected and qualified presidential electors from the state of Georgia”.

Mr Gillen argued that Mr Shafer was just following legal advice, a similar argument made by other defendants in the case.

The lawyer wrote in a filing that his client was “attempting to comply with the advice of legal counsel” and attempting to adhere to the law when he allegedly sent in the false document stating that Mr Trump had won the state.

Mr Gillen also claimed that Mr Shafer never acted as a public officer, as is claimed in the indictment, and the attorney also rejected the notion that his client was guilty of forgery after signing the document to become an elector.