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CNN Live Event/Special

Now, Fulton County Hearing in Trump Georgia Election Case. Aired 10-10:30a ET

Aired March 28, 2024 - 10:00   ET




LAURA COATES, CNN ANCHOR: Hello, and thank you for joining CNN's special coverage. I'm Laura Coates in Washington, D.C.

And literally at any moment, a hearing gets underway in Georgia's election interference case against Donald Trump.

The former president will not be in the Fulton County courtroom, but his attorneys will ask the judge to throw out the indictment that is against him. They're going to argue that Trump's conduct was actually political speech, and therefore should be protected by the First Amendment.

The hearing is also going to focus on one of Trump's fake electors. Attorneys for David Shafer, Georgia's former Republican Party chairman, will ask to have the case dismissed as well.

And, you know, it's worth noting, this is actually the first hearing since the presiding judge rejected the defense efforts to disqualify the woman you see on the screen right now, the district attorney of Fulton County, Fani Willis.

I've got a panel of experts here at the table to help analyze all of this. Elie Honig is also joining us from New York.

But, first, let's go to CNN Senior Crime and Justice Reporter Katelyn Polantz, who is live outside the courthouse in Atlanta. Katelyn, tell us more about what we are expected to hear in court this morning.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Well, today in court is the first time that Fannie Willis's office will be back before all of those hearings over her ethics debacle, something that the judge has warned her not to step into any issues anymore, talking about the case outside of court. Nathan Wade, the lead prosecutor, resigned. They're all back today, and this will be a refocus on the law and on the allegations, the charges. There will be arguments from Donald Trump's legal team.

Now, Donald Trump isn't expected to be here in person, neither is Fani Willis herself, but there will be arguments from Donald Trump's lawyers today about the First Amendment. They say that this racketeering conspiracy allegation that he faces includes quite a lot of political speech, tweets he was sending even, things that are protected under the Constitution, at least in the view of his attorneys, and so this case should be dismissed.

Previous attempts by other defendants in this case to have it dismissed, those have been unsuccessful, but this is part of the stress test that is happening in the court system to talk about what is alleged here, what is alleged against Donald Trump and also other defendants, other lawyers for the defendant, David Shafer, a prominent GOP official in the state of Georgia, who was among the fake electors and leading some of their efforts for Trump after the election. There's going to be arguments from him as well on dismissing the case.

Then, of course, too, we will see if there's any discussion at all about when this case would go to trial, a big question hanging over everything here in Fulton County.

COATES: That's a big question because, of course, she has recently said that the train is coming and none of this is going to derail her efforts to pursue a trial. She's actually pushing, we understand, for an August trial date. What are the chances of that happening?

POLANTZ: Well, it's hard to say until we hear the judge actually take this up. There have been many hearings here in Fulton County at the court before Judge McAfee, where we know the prosecutors want to talk about a trial date and it just hasn't been discussed. So, we'll see if it does come up today.

But remember what the calendar looks like for Donald Trump, at least on the side of the courts in these criminal cases where he's facing. He's going to trial in New York, in that hush money criminal case in the middle of April. That will keep him in court as a defendant in front of a jury likely for six weeks or so into June.

And then after that, there is an open calendar, though it's right in the middle of the presidential campaign with the convention making him formally the nominee set for July and the election in November. So, there's a lot of questions. Is it going to be this case that could go to trial or slot into the calendar sometime in that window or is there the possibility one of these other cases, the two federal cases against Donald Trump, would those fit in?

Each of these cases, it doesn't take just two days to try. And this case, in particular, in Fulton County against Donald Trump is massive. He and 14 other defendants are slotted to go to trial and the allegations here are voluminous. It will take quite a lot of time for the prosecutors to present those in court if and when it gets to that point.

COATES: Katelyn Polantz in Atlanta, thank you so much.

My panel is here to talk about all of this and unpack really what is a very significant case.

Let me begin with you here, Paula Reid, because pre-trial motions are common, right, as a defense wanting to articulate why you think you should not be here. This is particularly nuanced. PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: It is.


I was just rereading the brief. And, look, I'll give him an A for effort They're insisting he was talking about politics to politicians. It's political speech. It's afforded the highest protection under the First Amendment.

Again, A for effort, but this is not likely to carry the day, because the First Amendment has limitations. You cannot use your speech to encourage someone to solicit a crime. You cannot incite violence. You can certainly deny the results of the election. You can claim it was rigged. But there are limitations on the protections you are afforded. It is his right, though, to file this, as you said.

COATES: You know, listening to the court for a second here because the judge has just taken the bench as we're getting ready to hear more about the A for effort.

Let's listen.

STEVE SADOW, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: -- secretary of state or a telephone call that is at issue. I think those things are clear throughout the record in this case, but I'm not sure that they're necessary for the court to make an as applied challenge.

And as such, I think we can be limited to the well-pleaded facts, both in the RICO count, count one, as well as the other counts in the indictment.


Mr. Wakeford, any reactions kind of to some of those things I brought up in Mr. Sadow's response?

DONALD WAKEFORD, FULTON COUNTY PROSECUTOR'S OFFICE: Will it annoy the court if I actually --

MCAFEE: You can stay wherever you'd like.

WAKEFORD: I think we got to start with Hall, your honor, and I'm glad you pointed to that language because that was going to be the first thing I wanted to address today. Hall descends from a case called National Dairy, which it -- the language in Hall says, in cases like this, we're confined. We look at the charge conduct. That's what we look to. And Hall, of course, was -- they looked outside of the charging instrument to these other facts.

MCAFEE: Yes. So, it seems like that's not going to be an issue here because the state is not saying here's our entire theory of the case.

So, what stops us from doing an as applied First Amendment challenge just based on the indictment itself? That's a limited one and you kind of have a leg up since you get to put whatever you want in the indictment, generally.

WAKEFORD: Well -- and that's kind of the thing, is that when you look at the post-hearing brief from the defendant, and you actually look at footnote two, he's not actually asking the court to look at the well- pleading (ph) allegation. And in this case, what we want the court to do is read out certain language from the indictment actually not consider it. Just look at --

MCAFEE: Okay. Let's say, we don't get to that further step and we are just getting over that threshold, even if there was no footnote two. Any position at this point on can we make an as applied First Amendment analysis of this?

WAKEFORD: So, it's true in federal courts, it's kind of all over the place. Some courts explicitly stay away from it, and other courts go into it. We know that in this defendant's case in D.C., actually, Judge Chutkan explicitly went forward and made an analysis based on the allegations in the indictment there. But not every court does. And some federal courts stay away from it for a very specific reason, which is that there are still factual allegations which have to be settled by a fact-finder for a jury.

And the reason --

MCAFEE: And looking at all the cases that you found, ones that didn't do it, I know, generally, they're going to say, we don't have the record, we don't have the facts, but were there any that explicitly said, even though I could just look solely at the indictment, I'm still not going to do an as applied challenge?

WAKEFORD: Well, I think that's how we get to a case here in Georgia. And it's a case, Your Honor, cited back in October when you explicitly ruled -- I'm -- we're not going to get into this but

MCAFEE: The 11th Circuit case, though, isn't it? You're talking about --

WAKEFORD: I'm talking about the major case, which is the Georgia case.

The major case is where they say, okay, this is a pretrial as applied First Amendment challenge. But, essentially, what this boils down to is an argument about intent. That's what the defendant is really talking about.

And when you look at what the defendant wants to argue about here today, it's just saying, well, I was talking. I was just a guy saying things. I was just advocating. I was just speaking my mind, and so all of this is protected, and therefore the entire thing has to go away. That is a question --

MCAFEE: And I think that's your 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.

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 applied 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.

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.

SADOW: 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.


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 think 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.


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, 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 of the indictment. Words like unlawful don't change that. At least that's our position.

So, now, we're talking in terms, going back to Alvarez and the concurring opinion, you're talking in terms of falsity alone is not enough. There's stuff, there are situations, contexts, which override just the falsity alone. And that's, again, the political discourse, the political speech. The more significant it is to certain issues, clearly being [resident of the United States at the time, dealing with elections and campaigning, calling into question whether what had occurred, at least in the election of 2020, former president, that's the height of political speech.


And then you go even to the dissent, which I think is as important because now you have Alito and Thomas and members of the current court.

And I go to that, what I believe starts at page 751. And it says, even where there is wide scholarly -- and this is 752. Even there -- excuse me. Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out to be mistaken. And in these contexts, even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clear perception and livelier impression of truth produced by its collision with error, citing U.S. Supreme Court.

That's the essence of what we have right here. That's the facts that have been alleged.

Essentially, the state's position is because, as alleged, what President Trump said, speech-wise, or expressed either through his speech or conduct, which is still freedom of expression, because that's false in the eyes of the state, it's lost all protections of the First Amendment. And the concurring opinion and the dissenting opinion in Alvarez suggest just the opposite. If anything, under the circumstances, it needs more protection, not less protection.

So, keeping that in mind, let's move to not RICO. Put RICO aside for a minute. Let's move instead to the conspiracy counts, which are count 9, 11, 13, 15, 17, 19. Basically, what the state's position is on that, because it took this position previously and its filing on September 27th, 2023, in response to that which was filed by Cheseboro.

And I'm aware, of course, of the court's order dealt with Cheseboro, and it didn't deal with the has applied. So, I'm dealing with --

MCAFEE: And more so in that one, as I go back and look at it, there was a much more concerted effort to bring in facts outside of the indictment, right? And they started talking about, well, there was a transcript at the meeting, there was this. So, it didn't really seem to be a true as applied challenge, right?

SADOW: But as the court noted in its order, at that point, it didn't determine that it was ripe for a pre-trial challenge.

So, I'm taking what Cheseboro, what the state said as it applies now, because it says in that brief that it was both as to facial and as applied challenges.

Essentially, what it says is as to those counts, 9, 11, 13, 15, 17, 19, as to 9, 11, and 17, the mere fact that it alleges a fraud is enough. That is -- that's what's on page 5 and page 6. Since each of those statutes prohibit conduct involving fraud, we don't go any further.

And I'm suggesting that's wrong, that you must go further. You must look at the speech itself, the expressive conduct itself, in connection with those specific statutes. That's what the as applied is.

The fact that it's a fraudulent statute, now you want to look and see why, under the circumstances, here the language speech of the president falls within that. And if you look at it in that sense, the mere fact that it's false is all that they have. They don't -- there's not a finding that the speech itself, beyond the speech itself, is fraudulent.

What the state wants to do is say, we have a goal. We have an objective here that we have put forward. Steal the election in an unlawful fashion. I say, change that for a second to legitimate concern about the validity of the election. If that was the way you've 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?


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's statute is 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.