AtlantaCNN — Former President Donald Trump’s attorneys in the Georgia election subversion case are set to defend their client in a Fulton County courtroom for the first time on Friday as they try to have the charges thrown out on First Amendment grounds.
The historic indictment of Trump and 18 co-defendants in August, which includes felony racketeering charges, is one of several legal cases facing the former president. But it’s in Georgia where he and his alleged co-conspirators face a combined 41 state charges for trying to overturn legitimate election results in the 2020 presidential election.
Since the indictment, four of the co-defendants – including three of his former attorneys – all cut deals with prosecutors to plead guilty and testify against Trump in return for staying out of jail. The remaining 15 defendants, including Trump, have pleaded not guilty.
Here’s what to watch for during Friday’s sprawling day in court:
Trump’s Georgia lawyers make First Amendment claims
Friday’s motions hearing is scheduled to hear arguments from Trump’s attorneys on why they want to throw out the indictment on First Amendment grounds, according to a recent motion filed by his latest attorney.
This is the first time Trump’s attorneys will appear in court in the Fulton County case, though their client won’t be with them. Trump hasn’t yet been in the Atlanta courthouse – he previously waived his right to an arraignment hearing – though he was processed at the Fulton County jail in late August.
In a filing on Monday, Sadow argued that Trump’s peddling of conspiracy theories and claims of widespread voter fraud in the 2020 presidential election were at their core political speech, and therefore Trump never should have been indicted.
“…the indictment’s recitation of supposedly ‘false’ statements and facts, undisputed solely for purposes of a First Amendment-based general demurrer/motion to dismiss, show that the that the prosecution of President Trump is premised on content-based core political speech and expressive conduct protected by the First Amendment,” Sadow wrote.
The remedy for false speech in a “free society” is not a criminal indictment, he added. “The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straightout lie, the simple truth.”). The remedy is not a state RICO prosecution against the former President of the United States,” Sadow wrote.
Fulton County Superior Court Judge Scott McAfee has previously ruled against First Amendment challenges by Trump co-defendants Kenneth Chesebro and Sidney Powell, two of the former president’s lawyers who later pleaded guilty. Chesebro and Powell were seeking dismissal of the indictment under the supremacy clause of the United States Constitution. In his denial, McAfee ruled that various case law pointed to facts and evidence needing to be established in a courtroom before a First Amendment challenge can even be considered.
Clash over trial timing
Fulton County prosecutors want the trial of Trump and his co-defendants to begin in early August 2024, which could potentially be directly in the middle of his presidential election campaign if he wins the Republican nomination.
“This proposed trial date balances potential delays from Defendant Trump’s other criminal trials in sister sovereigns and the other Defendants’ constitutional speedy trial rights,” prosecutors wrote last month.
Prosecutors have previously estimated that their case would take at least four months, though McAfee has speculated that it might take longer, perhaps double that time. Fulton County District Attorney Fani Willis told the Washington Post last month that “the trial will take many months, and I don’t expect that we will conclude until the Winter or the very early part of 2025.”
Willis and her prosecution team plan to argue Friday that Trump knew he was likely facing charges in Fulton County back when he announced his candidacy in November 2022, and that he shouldn’t be allowed to use his campaign schedule to try to impact their case, according to a source with direct knowledge of the Fulton County district attorney’s office’s strategy.
Connection to the federal election interference case
Trump’s Georgia attorneys filed a motion last week to seek access to any discovery material in the possession of special counsel Jack Smith that may be relevant to the former president’s defense in Fulton County.
While Smith has produced discovery material to Trump’s lawyers in the federal election interference case against Trump in Washington, DC, a protective order prohibits those attorneys from sharing it with the attorneys in the Georgia case.
In their Georgia court filing last week, Trump’s attorneys said they want itemized lists detailing what information has been turned over by Smith’s team in the federal case, to start.
“President Trump is seeking fair and reasonable means to protect his right to due process of law under the U.S. and Georgia Constitutions,” Sadow, Trump’s lead counsel in Georgia, said in a statement to CNN.
When asked by CNN if prosecutors are sharing information with Smith’s federal investigators, a spokesperson for Willis’ office said: “no comment.”
The Atlanta-area district attorney’s office has previously maintained that its case against Trump is independent from the parallel federal election subversion case overseen by Smith.
Eastman says he does not want to stand trial alongside Trump
Trump co-defendant John Eastman is opposing the Fulton DA’s trial timeline and his attorney is expected to explain why in open court on Friday.
The right-wing attorney was charged in connection with his attempts to disrupt Congress’ certification of the 2020 election results on January 6, 2021. He filed a motion earlier this week arguing that the August 2024 trial start date proposed by prosecutors makes it nearly impossible for defendants not named Donald Trump to wrap up their trials by the end of the year.
As a result, Eastman is asking for Trump to be tried on his own and the remaining defendants be split into two different groups with “two trials each of eight or fewer defendants” in order to expedite proceedings.“Without Defendant Trump in the courtroom the U.S. Secret Service will not be involved in providing enhanced security, and the trials will proceed faster,” Eastman’s attorney wrote in the filing.
From the outset, Willis has maintained that she wants one massive trial for all of the accused and has resisted efforts by some defendants to break up the case, as is common in sprawling RICO indictments. The case was poised to be split into at least two trials, but a scheduled October trial for two defendants was averted when they both pleaded guilty at the last minute.
High-profile Trump co-defendants want to delay
Separately, former Trump White House chief of staff Mark Meadows and former Justice Department official Jeffrey Clark have filed motions requesting to extend their pretrial deadlines.
A federal judge rejected separate attempts by both Meadows and Clark to move their cases into federal court, finding that their alleged actions in the indictment weren’t part of their federal responsibilities. Both are appealing, and oral arguments are scheduled for Meadows at the 11th US Circuit Court of Appeals later this month.
Meadows is asking to extend his discovery production deadline and pretrial motions deadline to prevent him “having to litigate the same case simultaneously in two separate court.”
“Given the upcoming 2024 trial schedules of numerous defense counsel in this case and the scheduled 2024 federal criminal trials of former President Trump, a modest extension of Meadows’ pretrial deadlines would not prejudice the State or any other Defendant,” Meadows attorneys wrote in a court filing November 14
Clark is arguing that his upcoming commitments with the 11th US Circuit Court of Appeals, a DC Circuit removal appeal, and a Washington, DC, Bar evidentiary hearing about keeping his law license also entitle him to extend his discovery production deadline and pretrial motions deadlines.
Other co-defendants also seeking to dismiss indictment
Trump isn’t the only one who is looking to get the case against him dismissed. On Wednesday, attorneys for his co-defendant Bob Cheeley filed a motion seeking to dismiss the indictment against him.
A pro-Trump lawyer, Cheeley faces 10 counts, including racketeering and perjury. At a Georgia state Senate hearing in December 2020, Cheeley showed video that he falsely claimed contained “evidence” of vote-rigging in Atlanta that “should shock the conscience” of Georgians.
In part of the filing on Wednesday, Cheeley’s attorney wrote, “Here, the State is prosecuting Cheeley for his political expression including, unbelievably, his comments and statements before a sub-committee of Georgia’s State Senate regarding the 2020 presidential election.”
“The State avoids grappling with the contention that it is prosecuting Cheeley for nothing more than exercising his free speech rights,” his attorneys wrote.
Plea deals on the table for some defendants
Of the 15 remaining co-defendants, only a handful have not been approached by the DA’s office about a potential deal, sources told CNN, including Meadows.
This week, when asked if they have heard from Fulton County prosecutors about a possible plea deal, Eastman’s attorney Buddy Parker said, “They have not communicated any proposed plea agreement.”
This is intentional, a source familiar with the case said, as Willis is strategically focused on co-defendants listed at the top of the indictment and securing cooperation from those considered less important in the broader case.
She used a similar legal strategy in a 2014 RICO case in Fulton County, according to a source familiar with the matter. It was that 2014 case which first gained Willis national notoriety after she secured convictions in the Atlanta Public Schools cheating scandal.
CNN previously reported that the Fulton County prosecutors are unlikely to offer a deal to Rudy Giuliani – they consider him among the top-tier of defendants in the sprawling case, given his leading role in the alleged conspiracy, and his proximity to Trump.
To date, there haven’t been any conversations between Giuliani and prosecutors about a possible plea deal in the Georgia election subversion case, Giuliani’s new Georgia attorney Allyn Stockton Jr. confirmed to CNN.
A source with knowledge of the Fulton County DA’s strategy also told CNN that prosecutors would technically be open to discussing plea deals with anyone, but there is little room for compromise when it comes to the charges against Trump.
To be clear, there is no indication that prosecutors or Trump’s legal team are interested in discussing a plea deal. That’s largely because any hypothetical proposal would be completely on Willis’ terms and would require him to plead guilty to all the charges he faces, effectively taking the prospect of meaningful negotiations off the table, the source with knowledge of the DA’s strategy told CNN. Trump has pleaded not guilty, denied any wrongdoing and continues to insist he won the election.
Top fake elector fights back
On Thursday, co-defendant David Shafer filed motions looking to adopt the demurrers of other co-defendants.
His attorneys are also asking the judge to take into considerations “the facts” that Trump had, on December 4, 2020, when he made a legal filing “contesting the results of the 2020 general election in the State of Georgia.”
Shafer is the former chairman of the Georgia Republican Party and previously was a longtime member of the Georgia State Senate. He played a key role in organizing the Trump campaign’s slate of fake electors in the state, as part of the effort to subvert the Electoral College. He also served as a fake elector and was chairman of the sham delegation.
Rudy Giuliani’s lingering financial woes
Meanwhile, Giuliani currently owes millions in legal fees after defending himself in multiple defamation lawsuits. His longtime friend and former criminal defense lawyer Robert Costello sued him for over $1 million in unpaid legal bills.
His is now represented by the New York-based law firm of Aidala, Bertuna and Kamins, which has agreed to represent the former mayor pro bono in the Georgia case. It is unclear if the firm has received any money following Giuliani’s recent fundraiser.
Despite his mounting legal debt and the fact that he is almost 80, sources close to Giuliani said he intends to fight the Georgia case. At least one source close to Giuliani said he should consider a no-jail plea to “put the whole thing behind him” but prosecutors have not offered any such deal and Giuliani’s legal team says he won’t entertain any deal.
