Judge denies Donald Trump's motion to dismiss charges in Georgia election case

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A Georgia judge has denied former President Donald Trump's motion to dismiss his 2020 election interference indictment on the grounds of First Amendment protection. 

"After considering the extensive briefing, the argument of counsel, and the indictment, the Court finds these vital constitutional protections do not reach the actions and statements alleged by the State. Nor do the statutes themselves facially violate the First Amendment," Fulton County Superior Court Judge Scott McAfee ruled Thursday.

"They 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," he said. 

McAfee said that after interpreting the indictment’s language "liberally in favor of the State as required at this pretrial stage, 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." 

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Georgia Superior Court Judge Scott McAfee, left, and former President Donald Trump. (Getty Images)

Last week, Steve Sadow, counsel for the former president and presumptive GOP nominee, argued that his client's challenges to the 2020 election results were protected by the First Amendment. 

"There is nothing alleged against President Trump that is not political speech," he said.

But McAfee said in his Thursday order that "[e]ven core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity." 

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Former President Donald Trump speaks during a Buckeye Values PAC Rally in Vandalia, Ohio, on March 16. (KAMIL KRZACZYNSKI/AFP via Getty Images)

"The defense has not presented, nor is the Court able to find, any authority that the speech and conduct alleged is protected political speech," he added. 

Notably, the judge seemed to indicate he has not closed the door on First Amendment challenges completely, indicating similar challenges could be made once a factual record has been established. 

"Without foreclosing the ability to raise similar as-applied challenges at the appropriate time after the establishment of a factual record, the Defendants’ motions based on First Amendment grounds are denied," he said. 

Sadow in a statement following the decision said, "President Trump and other defendants respectfully disagree with Judge McAfee’s order and will continue to evaluate their options regarding the First Amendment challenges."

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Judge Scott McAfee presides at the Fulton County Courthouse in Atlanta on Feb. 15. (Alyssa Pointer, Getty Images)

"It is significant that the court’s ruling was without prejudice, as it 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…’" he added. 

Trump was indicted in August on charges that include the Georgia RICO Act, the Racketeer Influenced And Corrupt Organizations Act; solicitation of violation of oath by a public officer; conspiracy to commit impersonating a public officer; conspiracy to commit forgery in the first degree; conspiracy to commit false statements and writings; conspiracy to commit filing false documents; conspiracy to commit forgery in the first degree; and filing false documents. 

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In March, Judge McAfee tossed six of the charges against Trump and his co-defendants, saying the state failed to allege sufficient detail for six counts of "solicitation of violation of oath by public officer." 

A trial date has yet to be set.