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This House, Georgia Election Subversion Case Resuming; Now, Fulton County Hearing in Trump Georgia Election Case. Aired 10-11a ET
Aired March 28, 2024 - 10:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ELENI GIOKOS, CNN ANCHOR: Welcome to the second hour of Connect the World. I'm Eleni Giokos in Abu Dhabi.
ERICA HILL, CNN ANCHOR: And I am Erica Hill in New York. We are watching two big stories in American courtrooms happening this hour. In Atlanta,
attorneys for Donald Trump will ask the judge to dismiss the Georgia elections subversion case against the former president on grounds that the
charges violate his First Amendment right to free speech.
GIOKOS: And Sam Bankman Fried is being sentenced in New York for his role in the collapse of cryptocurrency exchange FTX. It's one of the largest
white collar crimes in history. Bankman Fried potentially faces decades in prison. We'll have more details as we get them.
HILL: As we say on that one, we are going to move to Atlanta. There's CNN's Zach Cohen joining us now from Washington with more on what we'll be
looking for there. Renato Mariotti, also with us former federal prosecutor, and Misty Marris, who's a defense attorney.
So, Zach, first bring us up to speed here. What is going to be happening in that courtroom? This is a motion that was actually filed before there was
all the drama with Fani Willis.
ZACHARY COHEN, CNN NATIONAL SECURITY AND JUSTICE REPORTER: That's absolutely right. And the fact that this hearing is even happening does
speak to the fact that this case continues to move forward despite the two- month detour we took, you know, as prosecutors or as defense attorneys were trying to disqualify Fani Willis from this case.
But now we're going to get into some more pre-trial motions, some things that are unrelated to this disqualification effort, which we are still
waiting for an appeals court to weigh in on whether or not it's going review that decision.
[10:00:04]
But in the meantime, the case continues.
And these motions today include one filed by Trump's lead attorney, Steve Sadow, who is arguing that, basically, all of the actions and the alleged
crimes in the indictment are actions covered by the First Amendment, covered political speech protections in the First Amendment.
Trump's team is aware that these arguments have not been successful in the past, but, as we know, part of it is Trump is paying his lawyers a lot of
money and he wants them to throw just about any argument they can at the water to try to get this case thrown out. And we also know that, as they
have to argue, every pretrial motion before a trial can happen, it does feed into the delay strategy we've seen from Trump and his team.
But we will see Steve Sadow again, Trump's lead attorney, stand up and make his case for why the indictment should be dismissed under this First
Amendment argument.
It comes at a time when Fani Willis is really trying to refocus attention on the case, on Donald Trump and on the criminal charges he and his fellow
co-defendants face here. We spent two months talking about her personal life.
But, again, now that this hearing is happening, it is a sign that we are back to business a little bit in Atlanta, even though, again, that
disqualification process still hasn't completely played out yet.
HILL: And just give us a sense as we look at what will play out here. Misty, what is the timeframe for this? How long could we be watching these
events today?
MISTY MARRIS, DEFENSE ATTORNEY: You know, I think it could be a couple of hours. Honestly, these cases have already been heard these arguments.
Sidney Powell made the exact same argument relating to the First Amendment. So, it's going to be very redundant to what we've seen before.
And the judge could rule from the bench. He could either rule from a bench or he could say that I'm going take it under advisement and rule later. But
I think that it is likely that we see some resolution today. And as the reporting indicates, we're back to the case, we're over the
disqualification proceeding and we are more in line with the merits.
So, the judge previously ruled with the other co-defendants who have since pled guilty, Sidney Powell and Kenneth Cheseboro, that the First Amendment
argument is something that can be raised at trial, but it's not enough to actually throw out the indictment. I expect a similar situation today.
HILL: So, as we wait and watch that play out, people may remember too, it wasn't that long ago, only, I believe it was two weeks ago, almost exactly,
that charges were dismissed from the original indictment here.
Renato, walk us through that, because the former president is still facing, I think, it's 10 felony charges. There were 13, he had 3 thrown out, 6 in
total were dismissed. How does that impact this case moving forward?
RENATO MARIOTTI, FORMER FEDERAL PROSECUTOR: It impacts certain defendants, like Mark Meadows quite a bit, because Mark Meadows now is facing a single
charge, RICO and nothing else. And so he can pursue a strategy in his defense where he essentially tells the jury, you know, Mark Meadows may
have done all sorts of things, you may have questions about Mark Meadows, but he's only charged with one thing, racketeering, and he is not involved
in that. He's not a mobster. He is racketeering, that sort of thing. So, I think it does help Mark Meadows quite a bit.
I don't think it really matters much at all for Donald Trump because Donald Trump is facing so many charges, as you point out, that, as a practical
matter, the jury is going to have to check not guilty many different times if he's going to essentially escape scot-free here. Realistically, a
conviction on any felony account is a devastating outcome for the former president.
HILL: Renato, as Misty mentioned, there was the motion that there will be the hearing for today. Similar were filed in the past. And, you know, that
did not get the case thrown out for those defendants. Are you expecting, as Misty is, to see similar from the judge today?
MARIOTTI: Yes. If anything, I really think there's nothing to these arguments at all. They have been -- as your reporter pointed out, have been
rejected by courts across the country.
Look, almost every crime or most crimes can be characterized or described under First Amendment terms, right? Fraud -- we're talking about Sam
Bankman Fried a moment ago, fraud involves talking to people, so does price fixing and a lot of other crimes. Maybe you go up to the bank teller and
when you demand the money from the bank, technically, that's also First Amendment speech. But the practical implication under the law is that those
sorts of criminal acts are not subject to protection under First amendment.
HILL: So, Zach, as you pointed out, you know, back in the courtroom, things are sort of moving forward, Fani Willis wants to get things back on
track. And I know those are the conversations that you've had. She'd initially asked, I believe, it was August 5th as a trial start date. The
judge hasn't really weighed in on that, but she's going to keep pushing.
COHEN: Yes, that's exactly right. And she might re-up that request is what I'm told. And she confirmed on the record to us when we caught up with her
over the weekend that if Judge McAfee doesn't put something on the calendar and she wants it to be put on the counter for before the 2024 election, she
may ask a second time for that to happen.
[10:05:03]
So, you're seeing her really push for something to be scheduled, put on the calendar, a trial start date before the 2024 election. It remains to be
seen if that is feasible, if that's possible. But in Fani Willis' mind, she's ready to go to trial. And she's said that she only needs 30 days of
preparation before a trial can start.
The defense attorneys have argued that there's an overwhelming amount of discovery in this case and that they haven't had the time to build their
own defenses. But people on the other side will argue you've had discovery since September, so you should be ready to go to trial once you get through
these pretrial motions.
HILL: Misty, from a defense perspective, how much time is enough time in this case?
MARRIS: Well, you know, from a defense perspective, you do want to ensure that you have time to review all of the documents. It's a racketeering
case. It's RICO. So, it's a conspiracy. That means documents, records, all of that paper discovery really, really matters.
But at this point, as the prosecution will likely point out, nothing is new here. We've known about this for a really, really long time. So, it will
just depend on what has been exchanged to date and whether or not there's more out there that could potentially be relevant to the case.
Look, both sides want to ensure that there's no surprise as a trial that due process is given because that's an appellate issue if it's not.
So, there will be ample time to review these documents, but will they be able to delay this much further than the summer? I highly doubt it. Because
I think pretty much the arguments are known at this point in the discovery for the most part has been exchanged.
HILL: So, you think then -- just to put a finer point on that, Misty, you think that this actually could -- everybody would have sufficient time, I
should say, to prepare for this case to go to trial in the summer?
MARRIS: I do think that that's the case. But I will say one thing that is really going to be a huge hurdle to overcome, it's going to be jury
selection. And in this particular county, there have been other trials where jury selection in high profile cases has taken literally months. So,
even if the trial were to go forward, say a trial date is in August, jury selection could go well into September or October in a high-profile case
like this.
HILL: And that is (INAUDIBLE). We are looking at live pictures now. The hearing is underway.
Renato, there's still the question of Donald Trump's team appealing that decision involving Fani Willis, the fact that the judge did not kick her
off this case, said that she could say did not disqualify her.
MARIOTTI: That's right. And while that is still sitting out there, I do expect the judge's ruling to be affirmed as a practical matter. I think it
was, if anything, very -- it was -- it went, I'd say, beyond what the strict letter of the law requires in terms of ensuring that not only is
there no actual conflict of interest, but essentially any potential appearance of a conflict of interest here is dealt with.
And Mr. Wade leaving the case definitely will contribute to taking that appearance of a conflict of interest off. So, I do think that the judge's
ruling is likely to stand that appeal. But, of course, I think that is a fruitful, a potential appeal for the Trump team.
HILL: All right. I do want to bring us into the courtroom now as we bring you these live pictures. Let's listen in.
JUDGE SCOTT MCAFEE, SUPERIOR COURT OF FULTON COUNTY, GEORGIA: -- strong argument -- strongest argument on if we're in the analysis of the as
applied challenge. I'm still just trying to get over and really understand the procedural element of it.
DONALD WAKEFORD, FULTON COUNTY PROSECUTOR'S OFFICE: Well -- and that's what major says, is that because that intent question has yet to be
answered and the jury is the person -- is the entity that answers that question, it's premature to consider this. You can't say that the First
Amendment has been applied or that the as applied challenge can succeed at this stage because there's still questions that have to be answered.
MCAFEE: I think it was like an over-breath on terroristic (ph) threats, right?
WAKEFORD: It begins with over breath, but then it moves into an as applied challenge. That's the last part of the major.
MCAFEE: Did they actually say premature or did they just say denied?
WAKEFORD: They say that -- they cannot say that the -- it's unconstitutional under the First Amendment as applied to the defendant in
that scenario because there are still intent questions
MCAFEE: So, does that actually maybe suggest then that they did do an as apply challenge? It's just very hard for a defendant to win that because
all you have is the indictment.
WAKEFORD: That is a way that you could interpret it. It would suggest that an as applied challenge cannot succeed under the First Amendment because
speech integral to criminal conduct is not protected. A well-pleaded indictment is going to demonstrate that speech that is pled as part of a
criminal charge is integral to criminal conduct. And so there is no -- there's nothing to decide if you're looking and you're cabined by the
indictment.
So, we sort of have two routes here. Neither of them result in the grant of this motion. One says, the court says, this is premature, there's questions
that have to be answered. Any First Amendment challenge has to happen after there's a factual record to look to.
[10:10:03]
And the other says, okay, I can get to this today. It's not that I can't. I can but there is nowhere to go because all of the speech is pled as
integral to criminal conduct, and therefore it is not protected by the First Amendment.
MCAFEE: You could envision an indictment. I don't know if -- I don't remember if Alvarez was a post trial or pre-trial thing, but you could have
envisioned an indictment where perhaps they drafted it to solely target speech because of its falsity or something like that. So, maybe there's a
use for an as-applied challenge in that kind of a situation.
WAKEFORD: That's the fair point, Your Honor. It's just not the situation here. And it's not going to be the situation in almost any case. That was a
special case where, of course, you have a very unique statute that was punishing.
But that really a facial challenge, too. Because it was saying like this is just punishing falsity for falsity's own sake. None of the charges in this
case are about that. They are about falsity employed as part of -- or statements employed as part of a pattern of criminal conduct in numerous
ways.
So, there's nowhere to go. And so I think it requires dismissal or denial at this stage because you either can't reach it because there's more facts
-- there're facts that have to be established or the indictment establishes that none of the speech is protected by the First Amendment, and the
inquiry immediately ends.
MCAFEE: All right. All right, so, back to you Mr. Sadow. Let's move forward with the idea that we're making it as applied challenge solely
confined to the indictment. This isn't a facial challenge. You're not saying any of these statutes are on this face.
STEVE SADOW, ATTORNEY FOR DONALD TRUMP: Correct.
MCAFEE: Unconstitutional. And your argument is that this is core political speech.
SADOW: Correct.
MCAFEE: So, some crimes can be achieved solely through speech, though, terroristic threats, you know, solicitation? Why is that not what's
happening here as alleged?
SADOW: Well, I think it requires kind of a detailed analysis, so if I may.
MCAFEE: Sure.
SADOW: All right. So, the first thing we have to decide is whether or not -- and we're talking about President Trump. We're not talking the actions
of others. We have to look and see whether that which has been alleged is facts, is, in fact, core political speech, speech, political discourse,
protective speech at its zenith.
I don't think there's any question that statements, comments, speech, expressive conduct that deals with campaigning or elections has always been
found to be at the zenith of protected speech. What do we have here? We have election speech. So, one must determine immediately whether that
constitutes core political speech, and I suggest that it does.
Now, does that make a difference ultimately? Yes, because the more core speech, the more it is protected, the less the government should be
involved in restricting it. I don't think there's any real doubt about that.
So, then the question becomes, is the mere fact that the state here represents that it is false or fraudulent under the statute. Is that
enough? Now, one I just heard, I think the state's position would be yes. All we have to do is say it's false, it's integral to criminal conduct,
it's fraud, and therefore it can't be unconstitutional as applied. I don't believe that that's what the law says.
I think what the law really looks at is, as to each individual application of a statute, whether or not the falsity in and of itself alone is
sufficient.
And I the case law indicates that that's not so, particularly, and I don't need to go back through in detail everything that Alvarez said, but I think
Alvarez is important. Because even when you talk in terms of, and I'll start with -- you're looking at the majority, what I would -- actually, I
guess it would be the plurality opinion that, by Judge Kennedy, but for purposes of interest to us, the chief justice and Justice Sotomayor agree.
So, now we're talking about two people still on the court.
And I'm looking specifically at page 723, in which the court goes on to say, were the court to hold that the interest in truthful discourse alone
is sufficient to sustain a ban on speech absent any evidence that this speech would be used to gain a material advantage, it would give government
a broad sensorial power unprecedented in this court's cases or in our constitutional tradition.
[10:15:03]
So, that's the beginning part of plurality, saying the way to attack false speech or false political speech or core speech is with truth, which is
precisely what was going on. We're talking about this time period without getting outside the indictment. You're talking about, at the same time the
allegations are being made, factual allegations and the indictment, you have others that are fighting that off. Government's position would be with
-- state's position with truth.
Moving beyond Alvarez, that part of it, you have Justice Kagan with Justice Breyer. And here, I think, gets to the crux of where we are, and this is
the concurring opinion. It goes through a litany of false statement cases in which the government's position in Alvarez is being false in and of
itself is enough. That is, once you determine it's false, we're done.
That's not what the concurrence says, and that's not what the dissent says. The concurrence says, basically, that these judicial statements cannot be
read to mean no protection at all. False factual statements can serve useful human objectives, for example, in social context where they may
prevent embarrassment, da, da, da, da, in public context where they may stop or panic in the face of danger, and even in technical, philosophical,
and scientific context where, as Socrates' method suggests, examination a false statement, even if made deliberately to mislead, can promote a form
of thought that ultimately helps realize the truth.
And then it goes on and says, even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clear
perception and the livelier impression of truth produced by its collision with error.
So, this is the proposition that it's not the falsity alone that controls. It's the context in which the speech is made. And if it is deemed false and
for purposes of the indictment, we have to assume that it is false because that's what the facts have been alleged.
That doesn't mean it's the end of the analysis.
MCAFEE: Why do we not also have to assume, since it's an allegation, and I think you say in your brief, that it's unlawful, willful, and knowingly
false?
SADOW: Because, at least our position, President Trump's position is, those are words are not words of fact. Those are words of legal
connotation. And while they have meaning, that would allow, for example, let's go to Alvarez and the Stolen Valor Act, just because they alleged
that it was unlawful didn't mean it wins. That is, it doesn't mean that the government wins.
MCAFEE: But that's because they decided that wasn't a crime at all. I mean, that was a facial challenge, where they said, this statute, even if
you violated it, violates the First Amendment. You've said that the RICO statute, you can violate it, and not -- you know, it's not a -- right? So,
we make, we put legal conclusions in indictments all the time. I think that's going to be part of Mr. Shafer's argument in just a minute.
I mean, you said a moment ago, just because the state pleads it, you don't think that's enough in an as applied challenge. And I'm trying to figure
out why.
SADOW: As to statements such as legal conclusions are unlawful and so forth.
Now, if there had been -- I guess if the allegations had been broader, maybe we wouldn't be at that crossroads, but those aren't facts. The facts,
as I've outlined or we've outlined in our brief, you take the overt acts, you look at those overt acts, and then those -- at the same time you then
look at the substantive offenses or conspiracy offenses in the rest of the body --
HILL: If you're just joining us here, you're listening to Steve Sadow, who is the attorney for former President Trump in Georgia there. And so what
you're watching live is a courtroom in Atlanta, Georgia, in Fulton County. That is, of course, where this election subversion case and where these ten
felony charges that the former president is facing. That's where that's taking place.
This is all about a motion that was filed late last year to dismiss this because the former president's attorney says whatever he said is protected
speech under the First Amendment.
Helping us to break this down, CNN's Zach Cohen joining us from Washington, Renato Mariotti, who's a former federal prosecutor, and Misty Marris, a
defense attorney.
So, Renato, I want to bring you in on this here. Do me a favor and translate what we've just heard, because there was a lot of legal speak
happening there, especially from Steve Sadow, as both he and attorneys for Fulton County are trying to make their case as to why, in the case of Steve
Sadow, he believes that this should be thrown out.
[10:20:05]
MARIOTTI: Yes. I mean, what you really saw there was sort of a slowly sinking ship as the judge has started throwing argument after argument,
making point after point, asking question after question. And I think the attorney was doing a very able job of trying to field all of that.
But at its core, the issue really gets resolved by some of the things that the judge said very early on. And so, for example, one point that the judge
made very early on is that, as a practical matter, a lot of crimes involve speech and can be committed just with speech alone, right?
So, for example, he used the examples of solicitation, which is, of course, one of the crimes that's charged in this particular indictment, or, you
know, terroristic threats or other things. So, the mere fact that speech is involved is not just positive.
And one other issue that has been going back and forth, there's been a discussion just before we broke about the allegations in the indictment.
And the reason that that's so important right now is that there hasn't been a trial yet.
The facts aren't asserted yet. We don't know exactly what the evidence is. We don't know exactly what the witness testimony will be. All that we know
are the government's allegations in the indictment. And at this stage of the proceedings, they have to be accepted is true.
And it's not going to surprise your viewers to know that, typically, prosecutors write indictments in a way that preserves their arguments and
makes them look like they are making a defensible prosecution.
So, it's just a very uphill battle. And as a result, I think the lawyers are having a difficult time dealing with all of that.
HILL: So, we'll continue to follow this. We should point out, similar arguments that were put forth from other co-defendants were not successful.
Stay with us. We're going to take a short break as we continue to monitor this very significant hearing in Georgia.
We'll be right back after this.
(COMMERCIAL BREAK)
GIOKOS: Welcome back. And we've been listening to the hearing underway in Atlanta in the Georgia election subversion case against Donald Trump. His
lawyers are arguing for dismissal on the grounds that charges violate Trump's First Amendment rights to free speech.
Previous First Amendment challenges by two former Trump co-defendants were unsuccessful. Meanwhile, the state is arguing the defense has no legal
grounds to seek a dismissal.
Let's listen in.
SADOW: I say change that for a second to legitimate concern about the validity of the election. If that was the way you focused on it, which is a
way to do it as applied, even with the facts, would what President Trump said on those counts be a protected speech?
[10:25:01]
And the answer is it has to be. Because the only thing that makes it fraudulent is the state saying it's false.
Take every one of those and say, okay, it's not false. It's protected. The only reason it becomes unprotected in the state's opinion is because they
call it false. And that's what Alvarez doesn't allow In and of itself, it cannot be simply the content-based. It has to be contextual. And the
contextual here is a political core value being addressed elections and campaigning.
And that holds true for the -- all of those that deal with the conspiracy. And then you deal with counts 29 and 39 which is the false statements
charges.
Now, it is clear that The Supreme Court would find that a statement made under 1,001, 18 USC, 1,001, would constitute the appropriate, let's say,
abridgement or non-protected conduct or speech.
But Georgia statutes a little different here because we don't have a materiality element, it's the mere fact of falsity which violates,
according to Georgia law, counts 29 and 39? You don't have to do anything else, but make a false statement, even if it is political discourse, even
if it is in the heightened context that I've suggested. If it's false, it's a violation of the law. And I'm saying, as applied to political speech,
that can't be constitutional as applied. Remember, no materiality, simply the fact that he said it.
So, essentially, what the state's position on that would be, it didn't have to be sent to anyone of consequence in the state agency, it just had to be
said. Indeed, if you look at, and the most probably best example is count 39, that's a letter written after the election in September of 2021 from
President Trump to the secretary of state, in which it has, according to that one statement, and that constitutes, according to the state, falsity,
but it's clearly political speech and it's clearly being related to the activities and the matters that of election and campaign, even after the
fact, it's still related just to that.
So, looking at 29 and 39, I think you have a situation in which the falsity alone is all they have as applied here to political speech, it is
unconstitutional as applied under the First Amendment.
And then, finally, you have count 27 --
MCAFEE: A quick question on that. I hadn't located one. Had you found a -- anyone ever attempted a facial challenge on 16, 10, 20?
SADOW: Yes. In fact, I don't remember the name of the case, but it has been upheld, even though there was references to the fact that maybe
materiality should be part of it.
MCAFEE: That's got to be the -- yes, the other case. That's right. That's right. Okay.
SADOW: Yes. Facially, yes, but Haley (ph), of course, didn't go to the extent of trying to determine as applied in a particular context.
And it's -- again, I don't want to repeat what I just said, but here we're talking about the height and value of core political speech.
And then with 27, we're talking about the filing of a false document. Again, the only thing there that involves President Trump is an attestation
on the complaint.
Now, all it refers to on the indictment is complaint. But, again, we're talking about the act -- the falsity or the filing of a false document is
the falsity in the document itself. And I'm suggesting under the circumstances that and that alone wouldn't violate that statute as applied.
So, regardless of the facial challenges, the question becomes here, is the mere fact that the state says fraud or false statement enough to get by an
as applied challenge? And our suggestion is it is not.
Now, let's go to RICO. And I think RICO is more difficult, to be honest with you, because we're talking about a much broader statute. At the same
time, when you look at the allegations against President Trump, all of the allegations, all of the allegations involved expressive conduct or speech.
We have false statements alleged in overt acts, and, again, all of which are political core value, political discourse.
[10:30:01]
You have false statements in overt acts 1, 5, 7, 8, 17, 93, 97, 108, 113, 133, 135 and 157.
Purely, the only allegations there are falsity. There's no allegation beyond the fact that those statements are made. And I'm suggesting that
heightened political speech has to be looked at differently.
When it comes to tweets, which is at least the way the state sets it forth, is also political speech and here, certainly by the then-president of the
United States you have tweets in 22, 26, 27, 32, 75, 100, 101, 106, 114, 128, 138 and 139.
So, the majority of the overt acts involve false statements or tweets which are clearly political speech. How best to deal with that under the
circumstances, to prosecute those under a broad RICO charge --
HILL: If you're just joining us, you've been listening to this hearing. This is about a motion, which attorneys for Donald Trump have brought. They
want that case dismissed, the election subversion case in Atlanta and Fulton County, Georgia, dismissed, they say. All the comments that were
made are protected, as political speech under the First Amendment.
Misty Marris is joining us. She's a defense attorney. Misty, as we watch this, there have been two similar motions which were filed by other co-
defendants which were unsuccessful. Are you hearing anything different from former Trump's attorney here as he tries to make this case for his motion?
MARRIS: So, the arguments are largely the same. And what I'm hearing from some of the questions from the judge is that the judge simply isn't buying
it. So, I'm anticipating that we're going to see a similar result.
Essentially, what's happening right now is that Trump's attorneys are arguing that because of the circumstances, because it's political speech,
because it was Trump, they're saying validly questioning the result of the election, that it falls under that category of protected speech, and that
the indictment itself, and you hear them going through certain counts and pointing to certain counts in the indictment, that the allegation by
prosecutors that says those statements were false is not enough to serve as the basis for the indictment and that First Amendment protections should
prevail.
And what I anticipate we're going to hear from the judge, and I'm saying this not because I'm making up my own arguments, I'm saying this because
we've heard these arguments before, we're in Groundhog's Day, right, we've heard two other challenges, the judge is going to say that those are very
valid arguments for trial, but they're not enough to overcome the indictment, that there are factual questions, like whether or not the
statements were false, and those are questions for a jury.
And so at this particular stage of the game, it's unlikely to be successful on this First Amendment challenge. That doesn't mean that it isn't an
argument at some point down the line.
So, I think that we're just -- what we're hearing now is zealous advocacy in the part of a defendant -- you know, any defense attorney is going to
make these arguments, but it's just very unlikely to be successful, especially since we've already heard the same arguments previously, with
two other cases that were not successful.
HILL: Yes, absolutely. We're going to continue to monitor this in Georgia. Stay with us. We'll be right back on the other side of this break.
(COMMERCIAL BREAK)
[10:35:00]
HILL: Welcome back to Connect the World. I'm Erica Hill in New York.
At this hour, Donald Trump's legal team is in a Georgia courtroom, a hearing underway -- you're looking at live pictures there -- over whether
the charges in the election subversion case against Donald Trump should be dismissed.
Trump's lead attorney is arguing the former president's political speech is protected by the First Amendment, and therefore he cannot be criminally
prosecuted. Prosecutors, meantime, say it was premature to consider First Amendment arguments, and that those arguments are a matter for a jury.
CNN Senior Crime and Justice Reporter Katelyn Polantz joining us now live from Atlanta. Katelyn, good to see you this morning.
So, as we're watching this, I was just speaking with Defense Attorney Missy Maris before the break, we've heard similar efforts before this judge for
other co-defendants to try to get their charges dismissed. What are we hearing this morning in terms of arguments? Are they pretty similar to
those that went before them?
KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: It's pretty similar in the general idea but different facts that they're talking about.
These arguments this morning are already moving pretty swiftly.
We've already heard from the prosecution team, so that's the office of District Attorney Fani Willis, arguing that all of the speech that Donald
Trump is trying to say is constitutionally protected cannot result in a criminal charge and thus must have this case against him dismissed.
The prosecutors are saying that all of that speech, it's part of the criminal conduct. It doesn't matter if it is tweets or things Trump was
saying publicly, even though there is a First Amendment right in this country, in the way that it's charged under Georgia state law, that should
be considered part of the allegations, and this is a fair case going forward.
They've also floated to the judge the idea that this isn't something that the judge needs to deal with just yet without knowing more facts of this
case having that portion of court proceedings. And then we have already heard quite a bit from Donald Trump's lawyer. his name is Steven Sadow.
And he is saying that these things that Donald Trump is charged with doing as part of his conspiracy charges, his racketeering charges, along with
many other defendants, that that is the zenith of protected speech, his tweets, his speech on The Ellipse, the things he was saying personally to
people about fake electors, about protesting the election, even if he knew it was fraudulent. All of the allegations, Sadow says, involve expressive
conduct or speech, and thus this case should be tossed.
We are going to wait and see what the judge says here. He could rule today or indicate which way he's leaning today, but, typically, he would write a
written opinion at some point down the line.
We also are very likely to be hearing from a co-defendant of Donald Trump today, the attorneys for David Shafer, a top political Republican official
in the state of Georgia who's charged as leading that fake elector plot here. They're going to be arguing that he was just following what lawyers
were telling him to do and the law as he believed it to be.
So, those are the stress test points that are happening today in court. They're talking about the law in this moment that refocuses this criminal
case against Donald Trump and 14 others in Georgia on the facts, the allegations, and the legal issues at play here as they head towards trial
after weeks, if not months, of distraction that the court has had to deal with in handling ethics allegations against the district attorney that led
to the resignation of her top prosecutor recently.
Everybody is back in court, and the hearing is still ongoing.
HILL: All right. And we're going to continue to watch it. Katelyn, I really appreciate that scene reset for us. It's super helpful as we bring
our viewers now back inside that courtroom in Fulton County, where we now see an attorney for the prosecution for the D.A.'s office now speaking with
the judge.
Let's listen in.
WAKEFORD: -- in addition to the falsity of the statements employed to make them happen.
[10:40:00]
So, I think there's been a suggestion that, Your Honor, can sort of reframe what you're looking at. But Alvarez does nothing to shift the basis that
the court should stand upon when evaluating the indictment. And that is to say, is this speech being punished solely because it's false, solely
because of its viewpoint, or is this speech that's being demonstrated as integral to a pattern of criminal activity?
And, finally, the fact that it speaks to political concerns or core political speech, and this is something that the court in D.C. thoroughly
addressed, does not change the fact it can be employed as part of criminal conduct. The mere fact that you're talking about issues of public concern
or core speech, which may be completely fine and protected in certain -- in most contexts does not mean that you cannot be indicted if you use that
kind of speech to pursue illegal activities. That's the whole nature of the question.
So, it's very circular and I would direct. your honor, to page six to seven of the post-hearing brief followed by Defendant Trump, which says the
speech integral to criminal conduct exception of the First Amendment does not apply here because all the charge conduct constitutes First Amendment
protected speech. That is a very neat circle.
The First Amendment protects us because all the speech is protected by the First Amendment. And in the end, no matter how much we hear about the --
obviously, the noble protections afforded by the First amendment, all of this is an effort to get, Your Honor, not to look at the basic fact that
this speech, this expression, all this activity is employed as part of a pattern of criminal conduct in a host of ways.
And because, Your Honor, is bound by the indictment and has to look at the indictment, and can't look beyond it, if we're going to get into this at
this stage, then there's nowhere to go, as I said at the beginning, because this is all alleged as part of a pattern of criminal conduct and not
protected by the First Amendment. Any argument to the other otherwise is just to try to pretend like that's not true.
MCAFEE: All right. Thank you, Mr. Wakeford.
WAKEFORD: Thank You, Your Honor.
UNIDENTIFIED MALE: May I add one point briefly?
MCAFEE: Sure.
UNIDENTIFIED MALE: Thank you.
SADOW: Wait a second. We're being doubled up on here?
MCAFEE: This is not a trial. I think you can handle it, Mr. Sadow.
UNIDENTIFIED MALE: And it is -- I'm just going to be on one specific point, not duplicate the argument made before.
HILL: Thank you for joining us. These are live pictures, of course. What we've been hearing is from the Fulton County courtroom where there is a
hearing from attorneys of Donald Trump who had filed a motion looking to dismiss the charges against him.
We've been watching arguments there from both the defense and of, course, from prosecution We're going to keep an eye on this, as well as a number of
other stories we're following very closely for you. We'll get you caught up on all of that on the other side of this break.
Stay with us.
(COMMERCIAL BREAK)
[10:45:00]
HILL: Welcome back. Right now, we are following on your screen there live in a Georgia courtroom a hearing underway over whether the charges in the
election subversion case against Donald Trump should be dismissed.
[10:45:07]
His attorney arguing this morning that his statements about the 2020 presidential election in Georgia are, quote, core political speech and
therefore protected by the First Amendment and cannot give rise to a prosecution.
Prosecutors, for their part, said it was premature to consider First Amendment arguments and that those arguments are a matter for a jury to
decide.
Let's bring it back right now as we can see the attorney for Donald Trump, who's now speaking.
SADOW: -- and therefore now we're talking about true political speech, not alleged falsehood (ph). He could still be prosecuted for the violation of
RICO.
MCAFEE: But the overt acts as alleged. Let's say even the overt acts ran afoul of the First Amendment, you're saying that wouldn't be fatal to count
one?
SADOW: Because at that point, if they --
MCAFEE: There could be some other thing they prove that's not alleged as an overt act, as I understand it.
SADOW: As I understood it as well. But what I'm suggesting is if all of the overt acts are nothing more than core political speech or expressive
conduct and nothing else is alleged, which is not protected by the First Amendment, then you have an insufficient basis for which he has been
indicted because he's being indicted for First Amendment speech and not for unprotected speech.
And therefore the statement that was made about if it were true, we could still use it as an overt act suggests that they can prosecute true speech,
which is what we're trying to get to here. It's the nature of the speech, the political speech the heightened value of such, which gets this
situation different than others, and the fact that it comes from then- president of the United States.
Going back to what was said in addition by the state. What the state claims is criminal here is lying to the government. That's what it said. That's
the exact reason why, in several of the Supreme Court cases, it's been found to be protected speech, because it deals with the government and
falsity and in the sense of communication with or to the government is best dealt with through true speech, not through prosecutions, because
prosecutions chill speech. And when it comes to political core speech, what you don't want is chilled.
I use -- fortunately, I have a co-counsel that is able to pull things up and help me inform the court, until the computer shuts down. And looking at
what Haley says, just to give you an idea of how the Georgia court, the Supreme Court might look at this. There's a quote from Haley, and it says,
while there is no constitutional value in false statements of fact, such erroneous statements are nevertheless inevitable in free debate and
punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press.
Accordingly, the First Amendment requires that we protect some falsehood in order to protect speech that matters.
And I think that's what we're talking about here. To end this, and, again, we're focusing on President Trump's conduct that at the time that he, in
fact, is the head of the executive branch, there is references to this in Brown v. Hartlage, and I cited that earlier.
HILL: So, you're listening to this -- to the live hearing here out of Fulton County, Georgia. That is the attorney for former President Donald
Trump, who is hoping to have these charges in the elections aversion case against his client thrown out.
We're going to take a quick break here. We'll continue to monitor this and we'll see you on the other side.
(COMMERCIAL BREAK)
[10:50:00]
HILL: And as we're following this hearing out of Fulton County, Georgia, in the Georgia election subversion case against Donald Trump, his lawyers,
you see his lead attorney there, Steve Sadow, arguing for dismissal of those charges. This, of course, is just one of multiple legal issues facing
the former president. He is also the presumptive Republican presidential nominee, of course.
There is no trial date in this Fulton County case, no indication yet from the judge when one will be announced.
I want to bring in former state and Federal Prosecutor David Weinstein. David, good to have you with us.
As we've been watching this play out this morning, so this hearing is about a motion that the former president's attorneys filed. They want these
charges thrown out. They say, basically, look, whatever the former president said, this was protected as free speech, and therefore we
shouldn't be in this courtroom.
It doesn't sound like the judge at this point is maybe going along with that. We know there have been similar motions from other co-defendants,
which were not successful. Walk us through what you're hearing so far and what it tells you about where the judge could be leaning.
DAVID WEINSTEIN, FORMER STATE AND FEDERAL PROSECUTOR: You know, the judge is using the Socratic method that's been used on many of us in law school,
and he's asking questions, he's getting into the argument, and at times, yes, it sounds like he's agreeing with this particular argument, but he's
doing it in a fashion that's sort of leading the people down the road to get to a point where he will then turn the table on them and say, okay,
well, if I assume or presume all of that, doesn't that then also defeat your argument?
And as you said, we've heard these arguments before, not only in this courtroom, as to other defendants, but we've heard them in district courts,
we've heard them made throughout the country in the cases in which the former president is facing the same or similar types of charges. And it's
the judge's job to let both sides present their arguments and to have a complete and full record so that there's due process.
And just because he might agree on one point doesn't mean that he is going to agree on everything that they've said. They have been successful in a
couple of motions here before this judge. We've seen them throw out some of the counts with directions to the district attorney as to how the judge
believes they could be re-filed, if that's what they want to do.
But I think on this, I think that he's telegraphed a little bit that he'll let them make their arguments, but I also think that he's hearing what the
government is saying, that this is, in some way, premature.
And you have to remember whether the statement is true or false and whether it's couched as this political speech depends on the statement and the
facts behind it. And the people who decide the facts, those are the jurors who are going to be selected to hear this case.
And so the judge might trim some of this indictment, and you heard him asking some questions about, well, what if there were other facts that were
alleged? Wouldn't that still support the first count? I don't see him going as far as the defense is asking him to go, but he's certainly letting them
make their arguments. And that's what a good judge should do.
HILL: I also want to bring in CNN Legal Analyst, Defense Attorney Joey Jackson. Joey, if you are the former president's legal team here, knowing
what has happened in these similar motions that have gone before you, how do you think that has changed what we're hearing from Steve Sadow, and how
should it change what he's putting forth in terms of his reasoning?
JOEY JACKSON, CNN LEGAL ANALYST: Yes, Erica. I think it's a very difficult argument to make, right? Because, absolutely, we are a country that
respects speech, and, certainly, when it comes to political speech, that's subject to a heightened level of scrutiny.
I think, however, the answer to your question is, obviously, the president is not similarly situated to others. What does that mean? It means that he
was, right, the president of the United States. And as a result of that, potentially the arguments, which could be the same, right, and are,
political speech is political speech, advocacy, good faith beliefs with respect to elections being interfered with, or elections being fraudulent,
are what they are. But when you're the president, perhaps you have a different type of interest with regard to the protecting the American
public, the American populace, and the integrity of the system.
Having said that, Erica, I think it's a very difficult argument to make and to be sustained, whether you're the president or not.
[10:55:01]
This is not simply speech. And you could argue that many crimes are committed as it relates to speaking, but it's beyond that. This is about a
criminal enterprise that was specifically designed that enlisted a number of people, attorneys included, to engage in a plot to overturn an election.
And so if it were just speech alone I think that would be one thing, but there's activity and conduct connected to the speech such that there were
people who were consulted about this, fake elective plots that were developed, right, a legislature that was completely given information that
was misleading to.
And so, again, as David noted, properly and rightfully, you want to, if you're the judge, allow everyone to make their arguments. It's part of the
process, and it could be certainly appealable in the event that you don't. But in allowing them to the argument, I think the fact that the judge would
buy into it, Erica, and sustain the arguments, and say there's nothing to see here, I'm dismissing this, I do not see that happening in any measure
at all.
HILL: We're going to continue to follow this. Joey, David, thank you both, as always, for your insight, for your expertise.
Again, we're following this out of Fulton County, Georgia, where attorneys for Donald Trump are now in court on a motion that they had filed. They
want the charges, the indictment, dismissed because they believe that what the former president had said was protected speech under the First
Amendment, because it is political speech. We'll continue to following it.
Thanks for joining us for this special Connect the World. Stay with us for more breaking news after a quick break.
(COMMERCIAL BREAK)
[11:00:00]
END
