Former U.S. President Donald Trump

Former U.S. President Donald Trump, the presumptive Republican nominee, speaks during a campaign rally at the Hyatt Regency in Green Bay, Wisconsin, on April 2, 2024.

(Photo: Alex Wroblewski/AFP via Getty Images)

Georgia Judge Won't Toss Trump Charges Under First Amendment

"Speech isn't protected when it's in furtherance of a crime, like saying 'stick 'em up' during a bank robbery," said one legal expert.

A Fulton County Superior Court judge on Thursday rejected a request by former U.S. President Donald Trump and most of his co-defendants to have their charges for interfering in Georgia's 2020 election dismissed on First Amendment grounds.

As Judge Scott McAfee explained, Trump and 14 other defendants in the Racketeer Influenced and Corrupt Organizations (RICO) Act case "argue this prosecution violates the First Amendment's protections of political speech and activity, freedom of association, and the right to petition Congress as-applied to their alleged conduct, and further contend that the indicted charges are overbroad."

"After interpreting the indictment's language liberally in favor of the state as required at this pretrial stage," McAfee wrote in his 14-page order, "the court finds that the defendants' expressions and speech are alleged to have been made in furtherance of criminal activity and constitute false statements knowingly and willfully made in matters within a government agency's jurisdiction which threaten to deceive and harm the government."

"Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity," he continued. "And independently lawful acts involving speech within the meaning of the First Amendment may nonetheless suffice to support a RICO conspiracy prosecution."

In other words, as University of Alabama law professor and MSNBC legal analyst Joyce Vance put it, "speech isn't protected when it's in furtherance of a crime, like saying 'stick 'em up' during a bank robbery."

The Hillnoted that the judge's Thursday ruling "leaves open the possibility that Trump could still raise a First Amendment defense down the road once the factual record is more developed."

Steve Sadow, the twice-impeached former president's lawyer, said in a statement that Trump and the other defendants "respectfully disagree with Judge McAfee's order and will continue to evaluate their options regarding First Amendment challenges."

"It is significant that the court's ruling made clear that defendants were not foreclosed from again raising their 'as-applied challenges at the appropriate time after the establishment of a factual record,'" the attorney added.

The Georgia election case has been held up recently by complications related to Democratic Fulton County District Attorney Fani Willis' love life, though McAfee ruled last month that she can continue to serve as the prosecutor. A trial date has not yet been set.

Trump is fighting three other criminal cases while campaigning as the presumptive Republican nominee to face Democratic President Joe Biden in the November election. There is also a New York state case stemming from hush-money payments during the 2016 election cycle as well as a pair of federal cases: one related to 2020 election interference and another that has to do with his mishandling of classified material.

In addition to 88 felony charges across the criminal cases, Trump is facing multimillion-dollar penalties in New York for "repeated and persistent fraud" related to his business and defaming E. Jean Carroll regarding rape allegations she made against him.

U.S. District Judge Aileen Cannon, the Trump appointee overseeing the classified material case in the Southern District of Florida, on Thursday rejected the ex-president's attempt to dismiss charges based on claims that he had the right to keep the documents under federal law—though her decision also leaves him the chance to return to the argument if the case goes to trial.

In her three-page ruling, Politicoreported, "Cannon also shot down a request from Special Counsel Jack Smith to promptly reveal whether she agrees with Trump's claim that the Presidential Records Act—the post-Watergate law governing White House records—may have authorized him to keep classified records indefinitely even after leaving office."

This post has been updated to include Thursday's classified material ruling and the 88 charges, reduced from 91 in March.

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