Holding Donald Trump’s election interference trial next August would amount to serious “election interference,” the former president’s lead Atlanta attorney told a Fulton County judge on Friday.
Making his courtroom debut for Trump, attorney Steve Sadow said the timing proposed by prosecutors — in which the Georgia racketeering case would begin just three months before the general election — would restrict Trump’s ability to campaign for a return trip to the White House. Trump is facing 13 felony charges in Fulton County.
“Can you imagine the notion of a 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?” Sadow told Judge Scott McAfee. “That would be the most effective election interference in the history of the United States.”
Sadow’s remarks came in the middle of a day-long hearing in which McAfee calmly and methodically waded through more than a half-dozen procedural motions from Trump and a handful of other co-defendants, many seeking to dismiss various counts of the indictment. The judge also asked Fulton prosecutors to expand on their recent proposal to try Trump and his 14 co-defendants beginning on Aug. 5, 2024.
Prosecutors previously said they expect the case would take about four months to try, excluding jury selection, which means it would be underway on Election Day.
In his response to Sadow, special prosecutor Nathan Wade insisted that “this trial does not constitute election interference.”
“This is moving forward with the business of Fulton County. I don’t think that it in any way impedes defendant Trump’s ability to campaign or do whatever he needs to do in order to seek office,” Wade said.
The back-and-forth showcased many of the considerations McAfee will need to make as he determines a trial date. Among them are the three other criminal cases Trump already has on the calendar in Washington, New York and Florida.
McAfee did not say how he would rule on the matter.
Throwing another complication into the planning, Sadow said that if his client wins back the presidency in November 2024, Fulton prosecutors would not be able to advance their racketeering case against Trump while he’s in office.
(The matter is likely to be fought out in the courts, given the unprecedented nature of a president entering office while under indictment.)
Wade said Friday that the state would need 30 days’ notice to be ready for trial and wants to stick to the proposed August date.
Another issue still to be decided is whether to try all 15 defendants together or in smaller groups.
Prosecutors emphasized Friday that they would still like to try the group as one. But McAfee suggested he favored splitting up the remaining defendants into at least two groups in order to ease the logistics for an expected trial.
While the judge declined to weigh in definitively on most of the issues put in front of him on Friday, he did agree to extend by nearly a month the deadline for pretrial motions for two of the defendants. Former White House Chief of Staff Mark Meadows and ex-Justice Department official Jeff Clark had each asked for additional time as they wage additional court fights in the federal 11th Circuit Court of Appeals and in Washington, D.C.
Also during the hearing, Sadow said he planned to file a motion in the weeks ahead seeking to get the charges against Trump tossed because he was president at the time of many of the events listed in the indictment.
One of the liveliest debates of the day centered on whether false claims of election fraud by Trump and his allies were shielded by the First Amendment.
Chris Anulewicz, an attorney for defendant Bob Cheeley, argued that prosecutors were taking a dangerous step toward criminalizing constitutionally-protected political speech by honing in on comments his client and others made questioning the 2020 election results in court and before the Georgia legislature.
“There’s no allegation of ballot stuffing. There’s no preventing someone from going to vote. There’s no violence. This isn’t the Jan. 6 case,” he said. “Everything that they are targeting are words that are coming out of the defendants’ mouths.”
Prosecutors responded by saying the First Amendment doesn’t protect some categories of speech, including criminal conduct, fraud and speech presenting a grave or imminent threat to the government.
Separately, attorneys for defendant David Shafer argued that federal law allows for the appointment of dueling slates of presidential electors when election results are still being litigated.
Shafer’s attorneys said that because there was still an active legal challenge from Trump in Georgia after Dec. 8, a federal “safe harbor” deadline, it was up to Congress, not the state, to decide whether to count the Republican or Democratic electors.
“If you get your act together by safe harbor day, then and only then do you get the final call on who the electors would be,” said Shafer attorney Craig Gillen. “But they didn’t. Because of that, then all of the Democratic electors and the Republican electors are in effect all at that time contingent electors, because there is no certainty about who or which slate will be selected under federal law as we know.”
Deputy District Attorney Will Wooten said Shafer’s attorneys were ignoring a key factor about their client and others who stated they were duly elected Trump electors.
“The elephant in the room is none of them were presidential electors. None of them are presidential electors. They’ve never been presidential electors, as it relates to the 2020 election,” Wooten said.
Another issue discussed: Sadow again asked prosecutors and the court to assist with obtaining lists of evidence provided by federal prosecutors to Trump’s attorney in the federal Jan. 6 criminal case in Washington, D.C. Trump’s attorneys there say they cannot share the information with his attorneys here because of a protective order issued by the federal judge.
Sadow made an argument that caught the attention of McAfee and prosecutors: If he can’t get the federal evidence and McAfee determines it’s relevant to his defense, the remedy would be to dismiss the case.
Prosecutors rejected that argument, saying they have no authority to demand documents from the U.S. Justice Department. But said they would respond more fully to Sadow’s argument later.
