Donald Trump tried to convince a state judge to drop his Georgia election interference case on Thursday, summoning a tortured relationship between falsehoods and truths to make his case.
Trump’s lawyers argued that lies aren’t just protected by the First Amendment; lies are sometimes essential, his lawyers said, at getting to the truth.
The morning’s court hearing could prove a pivotal step as Fulton County District Attorney Fani Willis works her criminal case against the former president to trial. Judge Scott McAfee, who recently delivered a blow to the DA’s office by probing her romantic relationship with a prosecutor she supervised, is now considering whether Trump’s persistent lies about 2020 election fraud are constitutionally protected under the First Amendment.
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Thursday morning, Trump lead defense lawyer Steve Sadow asked the judge to drop criminal charges on those grounds.
“Campaigning and elections has [sic] always been found to be at the zenith of protected speech. What we have here is election speech,” Sadow said in court.
In particular, Trump’s team fought back against two counts in Trump’s indictment that accuse him of making “false statements and writings.” One touches on how Trump told top state elections official Brad Raffensperger—on his infamous Jan. 2, 2021 phone call—that he’d actually won by 400,000 votes in Georgia (which was false), nearly 5,000 dead people had voted (they didn’t), and that defamed poll worker Ruby Freeman was a professional scammer who stuffed ballot boxes (she wasn’t).
The other count seeks to hold Trump accountable for his Sept. 17, 2021 open letter to Raffensperger that said, “as stated to you previously, the number of false and/or irregular votes is far greater than needed to change the Georgia election result.”
But trying to topple those criminal charges, Trump’s lawyer also went on to explore the unappreciated merits of lying.
“As Socrates’ methods suggest, examination of a false statement—even if made deliberately to mislead—can promote a form of thought that ultimately helps realize the truth,” Sadow said, quoting from a 2012 Supreme Court decision that examined whether falsities are constitutionally protected.
In trying to convince the judge, Sadow reduced the indictment to nothing more than prosecutors trying to punish Trump for uttering what the DA considers lies.
“The only reason it comes ‘unprotected’ [speech], in the state’s opinion, is because they call it false,” Sadow said.
Donald Wakeford, the Fulton DA’s chief senior district attorney in charge of the anti-corruption division, poked fun at Trump’s lawyer.
“It’s interesting to hear counsel for Mr. Trump tell us about the usefulness of lies,” he said.
“It’s not that the defendant has been hauled into a courtroom because prosecutors haven’t liked what he said,” Wakeford continued. “It does harm to the government. That’s the reason that it’s illegal… it’s not just that you made a false statement. It’s that you swore to it in a court document.”
Wakeford stressed that Trump’s conduct during the tumultuous months after the Nov. 2020 election can’t be diminished and brushed off as merely speaking his mind. After all, the indictment details how Trump and his team pressured state officials to come up with 11,780 nonexistent votes to flip the ballot results and tried to employ fake electors in an end-run around the legitimate vote certification in Congress.
Instead, Wakeford said, the judge must consider Trump’s band of misfits “a criminal organization.”
“It’s not just that he lied over and over and over again… it’s that each of those was employed as criminal activity with criminal intentions,” Wakeford told the judge. “What we have heard here today is an attempt to rewrite the indictment… and he was just a guy asking questions. Not someone who was part of an overarching criminal conspiracy for trying to overturn an election he did not win.”
A second member of the prosecution team also spoke up: John E. Floyd, the nationally renown RICO expert whom the DA hired to help her build this case against the former president as a racketeering mob takedown. Floyd told the judge that even if Trump's lies were actually true—and could be considered free speech—in actuality, he still took part in an overarching criminal conspiracy.
“For purposes of the RICO statute, it doesn’t matter whether that’s First Amendment conduct or not,” he said.
Sadow later pushed back on that idea, appearing aghast that the government could even ponder cracking down on Trump for speaking the truth—obviously a hypothetical situation.
Before the court took a midday break, Judge McAfee still appeared unsure of when he would consider Trump’s First Amendment claims. But he raised the specter of a last-minute surprise, suggesting that they could have an entire trial—one that’s widely expected to take months and would be a historical proceeding—only to have Trump's lawyers raise free speech issues afterward.
That would put McAfee in the position of potentially handing Trump a “directed verdict,” he indicated, a total victory delivered in one swift stroke—the ultimate deus ex machina.
“Do we go through a whole trial? God forbid there should be a convictIon, and then we go back and try and determine [this]?” Sadow asked.
