Former President Donald Trump’s attorney urged the judge overseeing the Georgia racketeering case Thursday to dismiss the indictment, arguing it is entirely based on political speech protected under the First Amendment.

Judge Scott McAfee held a hearing Thursday to consider three motions, including Trump’s December motion arguing the indictment “directly targets core protected political speech and activity.” Steve Sadow, Trump’s attorney, said there is no “underlying basis” for the case other than protected speech.

Thursday’s hearing is the first McAfee has held to consider motions since Nathan Wade, who was in a relationship with Fulton County District Attorney Fani Willis, resigned as special prosecutor. After the defendants alleged Willis financially benefited from awarding Wade a contract, McAfee ruled that she could only stay on the case if he stepped down, finding an “appearance of impropriety” in their behavior.

“There is nothing alleged factually against President Trump that is not political speech,” Sadow said. “It’s the speech that is being punished.”

Even false statements are protected, he said, citing the Supreme Court’s ruling in United States v. Alvarez.

“When you’re dealing with that speech, that political speech, you’re best to deal with it by pushing through a counterview of truth, not prosecuting the speechmaker,” he said. “Here, we’ve done just the opposite.”

Judge McAfee previously rejected a similar First Amendment “as applied” challenge that was filed by Chesebro & Powell last fall.

McAfee said that the First Amendment argument wasn’t “ripe” bc the factual record was “incomplete and vigorously disputed.”https://t.co/KVY75ufEEY pic.twitter.com/Dsr1LQNe4B

— Anna Bower (@AnnaBower) March 28, 2024

The state argued that speech integral to a criminal indictment is not protected by the First Amendment.

Prosecutors suggested McAfee could take two routes: say the challenge is premature based on the lack of facts or find that the indictment establishes the speech is not protected.

“Judge Chutkan in D.C. has evaluated all of these arguments under supreme court precedent already,” Donald Wakeford, arguing for the district attorney’s office, told McAfee. “I would refer your honor to that court’s analysis because I’m hardly going to improve upon the findings of a federal judge.”

Chutkan, who is overseeing the federal Jan. 6 case against Trump, wrote in December that it is “well established that the First Amendment does not protect speech that is used as an instrument of a crime.”

John Floyd is correctly stating the law but listen to how draconian it is: any one overt act by any defendant (not just you) is sufficient for a RICO conviction EVEN IF the other 160 overt acts are not proven or are protected speech. Georgians that is your law.

— GSU (@GsuGrinding) March 28, 2024

McAfee granted Trump and eight co-defendants’ request to seek review of his decision not to disqualify Willis last week. In his initial ruling, McAfee noted there were “reasonable questions” about whether Willis “and her hand-selected lead SADA testified untruthfully about the timing of their relationship.”

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Katelynn Richardson

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