Trump can’t be on trial in Georgia if he’s president, attorneys argue

Trump shouldn’t be tried until at least 2029, lawyers tell Fulton County judge

Alex Woodward
Friday 01 December 2023 21:05 GMT
Trump cannot be on trial in Georgia if he’s president, attorneys argue

Donald Trump shouldn’t be on trial in Georgia during his 2024 presidential campaign, and, if he wins that election, he shouldn’t be on trial until he leaves the White House, his attorneys told the judge overseeing a criminal case surrounding his efforts to overturn the results of the last election he lost.

The former president and leading candidate for the Republican nomination next year is criminally accused of joining a conspiracy to unlawfully subvert the state’s election results.

Prosecutors in Fulton County have proposed an August 2024 trial date, which his attorneys have called “election interference.”

“Can you imagine the notion of the Republican nominee for president not being able to campaign for the presidency because he is, in some form or fashion, in a courtroom defending himself?” Mr Trump’s attorney Steve Sadow, making his debut in the Georgia case, told a judge during a lengthy pretrial hearing in Fulton County Superior Court in Atlanta on Friday.

Asked by Judge Scott McAfee whether Mr Trump should face trial in 2025, if he wins the presidential election, Mr Sadow suggested that he shouldn’t be on trial until at least January 2029, which would be the end of his term.

“The answer to that is, I believe that under the Supremacy Clause and his duties as president of the United States, this trial would not take place at all until after he left his term of office,” Mr Sadow said.

Trump attorney Steve Sadow, right, makes his debut in his client’s election interference case in Georgia on 1 December.

The office of Fulton County District Attorney Fani Willis has roundly rejected that argument.

“This trial does not constitute election interference, let’s be clear,” Fulton County special prosecutor Nathan Wade told the judge. “I don’t think that it in any way impedes President Trump’s ability to campaign, or do whatever he needs to do to seek office.”

Trump wants case dismissed on First Amendment grounds

Mr Trump was initially among 19 co-defendants in the Georgia case, alongside his former White House chief of staff, a former US Department of Justice official, attorneys who were central to the bogus claims of election fraud at the centre of his multi-state legal campaigns to overturn election results, and state officials who joined a so-called “fake elector” scheme to falsely assert his victory in the state.

Four defendants – including his once-allied attorneys Jenna Ellis, Kenneth Chesebro and Sidney Powell – have pleaded guilty under plea agreements arranged with the Fulton County District Attorney’s office.

Judge McAfee indicated on Friday that he is unlikely to try all 15 remaining defendants together, if none of them drop out of the case with plea deals. Mr Trump, Rudy Giuliani and Mark Meadws are reportedly not being considered for such deals.

Friday’s mammoth, six-hour-long hearing included arguments for several motions surrounding the case, including arguments from Mr Trump and his co-defendants to dismiss the charges altogether on First Amendment grounds.

His lawyers have argued that the entirety of the indictment rests on “political speech.”

The sprawling indictment references the false claims of voter fraud and baseless allegations that fuelled challenges to election results, but the criminal charges target the actions that result from them, not the statements.

“You take the facts as alleged in the indictment, throughout the RICO count, and when you do that, as applied constitutionally with the First Amendment, you’ll find that it violates free speech, freedom of petitioning – all the expressions that the First Amendment is designed to protect, and therefore the indictment needs to be dismissed,” Mr Sadow told the judge.

Chris Anulewicz, an attorney for Mr Trump’s co-defendant Robert Cheeley, a lawyer who supported spurious litigation to overturn Georgia’s election results, said “every single count of the complaint, every single act ... relates to that political speech.”

Prosecutors firmly rejected those arguments.

“Conspiracy is not a crime involving expression. It’s a crime involving a corrupt agreement,” Fulton County prosecutor Will Wooten said. “The list goes on and on.”

Fake electors argue they didn’t do anything illegal

Attorneys for the so-called “fake electors” who falsely certified Mr Trump’s victory in the state argued that the case against them should be dismissed because they didn’t do anything illegal – arguments that fell flat when they were introduced in federal court earlier this year.

An attorney for David Shafer, the former chair of the Georgia Republican Party, claimed that there couldn’t be any lawful electors because Mr Trump was challenging the state’s election results in court. Those electors, including those who lawfully certified Joe Biden’s victory, were merely “contingent” until Congress approved them, she said.

Prosecutors pointed to a recent ruling in federal court and at the US Supreme Court that shot down theories animating lawyers’ arguments.

Those “electors” loyal to Mr Trump could have sent over a “a sticky note, a piece of paper, whatever it is” without getting prosecuted, as long as you are not purporting to be someone else or with authority you don’t have … with fraudulent intent,” Mr Wooten told the judge.

“The elephant in the room is that none of them were presidential electors,” he added. “None of them are presidential electors. They’ve never been presidential electors … Those arguments don’t apply.”

A busy schedule of criminal and civil trials

The Georgia case is separate from but parallel to Mr Trump’s pending federal trial on conspiracy and obstruction charges stemming from his attempts to overturn the 2020 presidential election. Both cases are among four upcoming criminal trials surrounding the former president, who is also facing federal charges connected to his handling of classified documents at his Mar-a-Lago estate. He also is criminally charged in New York for allegedly falsifying business records.

As Mr Trump’s legal team appeared in court in Atlanta on Friday, his attorneys were questioning witnesses on the stand in his civil fraud trial in Manhattan. That trial, which is now entering its 10th week, will have another round of testimony from the former president later this month.

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