The Sept. 12 decision meant that five of the original 13 criminal counts in Fulton County prosecutor Fani Willis’s indictment have been removed.
Fulton County Superior Court Judge Scott McAfee has dismissed two counts in the criminal indictment former President Donald Trump faces in Georgia.
According to McAfee, prosecutors lacked the authority to bring the charges, which related to the alleged filing of false documents in federal court.
The Sept. 12 decision meant that five of the original 13 criminal counts in Fulton County prosecutor Fani Willis’s indictment have been removed. McAfee removed three others related to Trump in March.
“President Trump and his legal team in Georgia have prevailed once again,” Trump attorney Steve Sadow said in a statement to The Epoch Times.
The case has been on hold for months and is headed toward an appeals court in December with consideration of whether Willis should be disqualified. Willis brought a 41-count indictment in 2023 against Trump and 18 of his allies. Currently, 14 co-defendants remain.
Motion to Dismiss
McAfee’s decision came in response to the defense’s motion to dismiss the indictment based on the supremacy clause of the U.S. Constitution.
“After considering the briefing and argument of counsel, the court finds the indictment is not barred entirely,” he said in his Sept. 12 ruling.
He added that an 1890 decision by the Supreme Court meant that the federal government preempted the “state’s ability to prosecute perjury and false filings in a federal district court.”
The 1890 decision, known as In Re Loney, involved a lower court discharging a man who was arrested by authorities in Virginia. He was charged with willful perjury in a case involving the contested election of a Congress member.
McAfee wrote on Sept. 12: “At its core, Loney concerns the ability of a federal tribunal to police its own proceedings.”
That ruling led him to quash two counts—conspiracy to commit filing false documents and conspiracy to commit forgery in the first degree—against Trump, as well as another for criminal attempt to commit filing false documents.
Part of McAfee’s decision rejected the idea that the Electoral Count Act, which outlines the process for counting the vote, preempted state laws. Preemption generally refers to the concept that the federal government has authority over states in a particular area of law.
Moreover, he said, the indictment fell “within the scope of state authority under the appointment powers granted in Article II, Section 1 of the U.S. Constitution and the police powers reserved by the states in the 10th Amendment.”
Trump’s Legal Battles
McAfee’s decision is among several other recent developments in Trump’s ongoing criminal cases in Washington, Georgia, New York, and Florida.
An election-related case in Washington has resumed with D.C. Judge Tanya Chutkan setting a timetable for proceeding after the Supreme Court’s July decision on presidential immunity.
Special Counsel Jack Smith filed a superseding indictment that retained the initial four counts in that case but excluded certain allegations for the stated purpose of respecting the Supreme Court’s decision.
It’s unclear how much of that indictment will remain as both sides are set to litigate the specifics of how the immunity decision applies to that case.
The issue is expected to come up in the Georgia case as well.
New York Supreme Court Justice Juan Merchan has said he will make a ruling on Trump’s immunity claims in the New York case in November.
Each have the possibility of resulting in prison sentences for the former president. Attorneys indicated to The Epoch Times that the Supremacy Clause would preclude Trump from serving time as a result of those cases.
Like Willis, Smith has encountered questions about whether his involvement with his prosecution was legally sound. Florida Judge Aileen Cannon held that his appointment was unconstitutional—a ruling which Smith has appealed to the U.S. Court of Appeals for the 11th Circuit.
Reuters contributed to this report.