The former president filed a notice in the Fulton County case.
By Jack Phillips
Former President Donald Trump and other co-defendants in the Fulton County, Georgia, case filed a notice that they will appeal a judge’s order that rejected their arguments to dismiss the case on First Amendment grounds.
Court papers filed Monday on behalf of President Trump and his co-defendants asked the Fulton County Superior Court to conduct an “immediate review” of their motions to dismiss the case on First Amendment grounds. They argued that the indictments handed down by Fulton County District Attorney Fani Willis’ office last year violate their First Amendment right to freedom of speech.
Last week, Fulton County Judge Scott McAfee rejected President Trump’s motions to dismiss the case on argument that it violated his right to free speech. Monday’s filing argued that an appellate review of Judge McAfee’s ruling is needed and that their “arguments are well-founded and fall squarely within the almost absolute First Amendment protections.”
If their appeal is successful, it would mean that most counts of the indictment against the dozen or so defendants would then have to be thrown out, according to the court papers.
“Resolution of these outcome determinative issues before multiple, lengthy jury trials makes sense,” the filing stated. “Immediate appellate review is warranted because the challenges relate to Defendants’ core political, free speech rights in the context of then-ongoing aftermath of the 2020 Presidential election.”
President Trump and the co-defendants face a range of charges in Fulton County and are accused of illegally trying to overturn the 2020 election results in Georgia. The former president and the remaining defendants have pleaded not guilty, while President Trump has maintained the case is politically motivated.
Monday’s filing also argued that Fulton County prosecutors have not been able to define what criminal conduct their speech contained other than their opinions on the 2020 election.
“President Trump and the other unjustly accused defendants have jointly filed a motion requesting the Court to grant a certificate of immediate review of its Order denying their pretrial First Amendment challenges,” said Steve Sadow, an attorney for the former president, in a statement on Monday in announcing the filing.
He argued that the appeal will target the indictment for “wrongfully” criminalizing “core political speech and expressive conduct protected by the First Amendment,” adding that there is “no democracy without robust and uninhibited freedom of expression.”
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In a 14-page order, Judge McAfee wrote that free speech “is not without restriction” and said that speech that does not fall within the First Amendment’s protections include speech relating to fraud, criminal conduct, or anything advancing an imminent threat. He wrote that a jury has to determine whether the former president’s speech had criminal intent, which is what Ms. Willis’ office alleges.
“Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity,” the judge wrote last week.
Fulton County has not issued a public response to the defendant’s notice of appeal.
Meanwhile, President Trump’s attorneys appealed a separate ruling handed down by Judge McAfee last month that allowed Ms. Willis to remain on the case after allegations surfaced in court filings that she engaged in a clandestine relationship with her former special prosecutor in the case. She confirmed the relationship but denied allegations that she had financially benefitted from the arrangement.
The judge, however, said that the special prosecutor, Nathan Wade, needed to step down or that she remove herself. Mr. Wade stepped down hours after the ruling was issued.
While he did not remove Ms. Willis, the judge noted that an “odor of mendacity” hangs over the prosecution in the case. He also criticized Ms. Willis for making “legally improper” public statements when she invoked race at a church speech in January.
“Providing this type of public comment creates dangerous waters for the District Attorney to wade further into,” Judge McAfee wrote. However, he took no action against her despite his criticism.
President Trump’s attorneys had filed court papers arguing that she should be dismissed based on the comments in which she asked whether her opponents are “playing the race card” because both she and Mr. Wade are black.
“Her disqualification is the minimum that must be done to remove the stain of her legally improper and plainly unethical conduct from the remainder of the case,” Mr. Sadow wrote in the appeal. “Her disqualification is necessary to ensure that she cannot continue to violate her heightened ethical obligations as a prosecutor to further prejudice Defendants and this case.”
Also Monday, Fulton County prosecutors filed court papers asking the Georgia Court of Appeals to reject President Trump’s appeal to remove Ms. Willis from the case over the relationship. They argued that she had no conflict of interest in the case and did not harm the case with her church speech.
“Days of evidence and testimony failed to disclose anything like a calculated pre-trial plan designed to prejudice the defendants or secure their convictions,” Ms. Willis wrote in the appeals filing.