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CNN Live Event/Special

Fulton County Hearing in Trump GA Election Case. Aired 10:30- 11a ET

Aired March 28, 2024 - 10:30   ET



STEVE SADOW, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: -- conduct or speech. We have false statements alleged in overt acts, and again, all of which are political core value, political discourse, you have false statements in overt acts 1, 5, 7, 8, 17, 93, 97, 108, 113, 133, 135, and 157.

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 supposedly with contesting an election by, I guess, illegitimate speech or expressive conduct, or is the way that we are set up as a country is that the First Amendment plays through this by others, by those that are complaining that it's false, proving it's false, bringing forth the truth. That's the essence of what Alvarez has said. That's the essence of what a case called Brown versus Hartlage, which is cited in Alvarez. It's 456 U.S. 45 at 61, a 1982 decision.

All of those speak in terms of when you're dealing with that speech, that political speech, you're best to deal with it through the pushing forth a counterview of truth, not prosecuting the speech maker or the person that is articulating his political views.

Here we've done just the opposite. We have decided that because of those views were unpopular and in state's opinion false, we must prosecute them to stop them from happening again, which is, again, the essence of why it's unconstitutional as applied because that's not what the law says.

Finally, the rest of the overt acts, either telephone calls or meetings or requests, no false statements. They're just acts, expressive acts, and they're in there as well. Those are political acts. And for the court's benefit, because I know there's a lot of overt acts, those are 9, 14, 19, 28, 30, 31, 40, 42, 43, 44, 90, 95, 112, what was in the old indictment is 123, number two is now I think is 125. 130, 131, 140, and 156.

There is nothing alleged factually against President Trump that is not political speech. What this court has to decide is, is the state's position that fraud or false statements under these circumstances, which I suggest really is alone, is that enough to get it by an as applied challenge? Our position is it's not. Is there another way to look at this? They're going to argue at the same time that it's integral to criminal conduct, but it's the speech that's being punished. That is the criminal conduct. If it's not the criminal conduct, there would never be an indictment for the RICO against President Trump or any of these other counts.

Take out the political speech, no criminal charges. Political speech disagreed with basis for all charges. I think that is the best way for me to sum up where our position is.

JUDGE SCOTT MCAFEE, SUPERIOR COURT OF FULTON COUNTY, GEORGIA: All right. Thank you, Mr. Sadow. All right. Mr. Wakeford or Mr. Floyd, if there are any points that you wanted to address or respond to?

Well, I'll start -- maybe I'll start you off with this. It certainly seems that the primary case driving Mr. Sadow's argument would be Alvarez and -- you know, because that's a fractured kind of plurality opinion. I'm wondering if you have any thoughts on just how much that can drive this and -- I know the state back in December was also citing Alvarez as the primary case. I wonder if that's even the best one for your arguments?


DONALD WAKEFORD, CHIEF SENIOR DISTRICT ATTORNEY, FULTON COUNTY: Well, I think to address the first, I think, elephant in this courtroom is that Judge Chutkan in D.C. has evaluated all of these arguments under Supreme Court precedent already.

So, I would refer, Your Honor, to that court's analysis because I'm hardly going to improve upon the findings of the federal judge. However, speaking specifically to Alvarez, it is a plurality opinion with several different concurring -- several different opinions written by other justices. What they all agree on, though, is that Alvarez doesn't change the law, that speech integral to criminal conduct is not protected under the First Amendment, and that that's not what Alvarez was about. It was about punishing falsity for its own sake.

So, the question is, is that what the state is doing here? And by fundamentally rewriting the indictment, the defendant is suggesting today that that is somehow what the state is doing, when actually what the state is saying is that these statements made by the defendant were all employed as part of criminal activity, various conspiracies, frauds, intentions with deceit, and violations of the law.

It's not just that they were false. It's not that the defendant has been hauled into a courtroom because the prosecution doesn't like what he said. He is free to say -- to make statements and to file lawsuits and to make other legitimate protests. What he is not allowed to do is employ his speech and his expression and his statements as part of a criminal conspiracy to violate George's RICO statute, to impersonate public officers, to file false documents, and to make false statements to the government. That's what he's alleged to do.

It's never -- he's not charged under 16-10-20 because he told some lies, although it is very interesting to hear counsel for Mr. Trump tell us about the usefulness of lies. He's not being prosecuted for lying. He's being prosecuted for lying to the government, an act which is illegal because it does harm to the government. That's the reason that it's illegal. That's why it's different from the statute evaluated in Alvarez.

Same thing with filing a false document. It's not just that you've made a false statement, it's that you swore to it in a court document and submitted it to the court. That does harm to the judicial system. That's obviously different from just falsity being punished for its own sake. And that is what each and every charge in the indictment is. demonstrates, is that these statements are part of criminal conduct that is larger than just the false statement on its own.

Especially with the RICO charge, where what we see is that this is a criminal organization whose members and associates engaged in various criminal activities, including but not limited to false statements and writings, impersonating a public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, and on and on and on.

What the defendant is suggesting to Your Honor is trying to get around to the fact that because -- it's almost saying that because these statements are false, that these charges should be dismissed, it's like, well, you can't punish falsity on its own, and yet each time you look at the charge, the government's saying, the state is saying that he lied. So, that must be the end of the inquiry. But that's not the end of the inquiry at all. That's not what the indictment says.

It's not just that he lied over and over and over again, as counsel for the defendant points out by listing all of the instances in the indictment, it's that each of those was employed as part of criminal activity with criminal intentions. And we finally get to a place where it's -- where I knew we would end up, which is saying, I believe Your Honor was requested to think about it as, not as lies, but as legitimate concern about election issues.

Well, that sounds like a trial argument to me, but this is why I began by talking about intent with Your Honor because I knew we were going to end up in this exact place where he said, sure, you can look at him as lies because they weren't true, or you could think this is just well-intentioned concerns from an American citizen speaking his mind. And that, of course, would probably be a pretty good argument to put before a jury. And I expect we will see it, but it's not a basis for dismissing the indictment.

The whole question of intent is no doubt going to be brought up. It can only be determined by a jury. But what we have heard here today is an attempt to rewrite the indictment, to take out the parts that are inconvenient and only say, well, it's all speech, it's all talking, and he was just a guy asking questions and not someone who was part of an overarching criminal conspiracy trying to overturn election results for an election he did not win, by violating the RICO statute, by making false statements to the government, by filing for false documents, by impersonating officers and doing a whole host of other activity, which is harmful, in addition to the falsity of the statements employed to make them happen.


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 the 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 that it can be employed as part of criminal conduct. The mere fact that you're talking about issues of public concern or core political 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 filed by defendant Trump, which says, the speech integral to criminal conduct exception of the First Amendment does not apply here because all the charged 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.

JOHN FLOYD, FULTON COUNTY SPECIAL PROSECUTOR: Your Honor, may I add one point briefly?

MCAFEE: Sure. FLOYD: 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.

FLOYD: And I'm just going to be on one specific point, not duplicate the argument made before.

I believe defendant Trump fundamentally misunderstands the role of an overt act in a conspiracy case. As we've discussed many times previously, this is a RICO conspiracy case. And so, we heard Mr. Sadow discuss various overt acts and say, well, but this is just a tweet. This is just a phone call. This was just acts. The unspoken underlying and incorrect premise then is that every overt act must be a crime.

As we've discussed a number of times and as the state has said forth extensively in multiple briefs, that's not true. The purpose of an overt act is to show that the conspiracy is in operation. It is not a separate crime. It doesn't have to satisfy the elements. It doesn't have to be pled with that level of detail, as Your Honor acknowledges in an order, I think, that's all of two weeks old.

And so, to say we can't mention this particular act or this particular conduct because it's not a crime or it's protected by the First Amendment, the answer to that is actually so what? Because it could be First -- it could legal conduct, it could be First Amendment protected conduct, that also shows there's a conspiracy in operation. And that's -- as long as it serves that purpose, it's fine.

And so, overt acts should not be examined by a standard that has no application to them. They are not separate freestanding offenses. And there is federal case law that -- and maybe we can cite it to you, that has said an overt act can involve First Amendment activity. Its purpose is not to be something that is separately charged here or separately -- subject to a separate sentence, its purpose is to show that there is a conspiracy and it's in operation.

Georgia requires for RICO because one overt act by any one defendant. So, of course, the RICO would stand if anything, any of the 161 overt acts alleged constituted an overt act. It would only take one. It doesn't take any by Mr. Trump.

But the point is we have an abundance of them by Mr. Trump. And for purposes of the RICO statute in the manner in which it functions, it doesn't matter whether that's First Amendment conduct or not. I mean, we've -- my colleague has fully explained why much of this conduct is not shielded under any circumstance by the First Amendment, and I don't mean to contradict that in any respect. But it's important not to lose sight of the function the overt act plays, the role it plays in a conspiracy case here because it is not the role being suggested by defendant Trump.


MCAFEE: All right. Thank you, Mr. Floyd. All right. Mr. Sadow, I'll give you a couple minutes, final word.

SADOW: Thank you, sir. If I heard what Mr. Floyd just said that if everything President Trump said was assumed true and included in the RICO indictment and therefore, now, we're talking about true political speech not alleged false, 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. He's 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.

SADOW: OK. That may --

MCAFEE: 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 gives 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 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 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. A well-publicized, yet bogus complaint on election eve raises the concerns that is -- raises the concerns that you may have some impact that would affect an election.

But the preferred First Amendment remedy of more speech, not enforced silence, has special force. Underlying our dependence upon more speech is the presupposition, the right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is and always will be folly, but we have staked upon it all. And for speech concerning public affairs is more than self-expression, it is the essence of self- government, and that comes from Garrison v. Louisiana, which is cited also in Alvarez.


Bottom line here is this. But for protected First Amendment speech President Trump would not be charged in RICO or the other counts. Take out the protected speech and you don't have an underlying basis for which to charge him. And since that violates constitution as applied to the charges here and his speech here and his position here, this is ripe for a constitutional challenge.

One step further, if it's not ripe now and we get into intent, when does the court determine that? Do you determine that after we have a trial?

MCAFEE: I think it would be the directed verdict stage, right?

SADOW: Would it?

MCAFEE: Even with all the --

SADOW: That's a sufficiency of evidence.

MCAFEE: With all inferences, yes, in favor of --

SADOW: That's a whole question. I mean, do we go through the whole trial? God forbid there should be a conviction and then we go back to try and determine as applied? I'm suggesting the reason it's ripe now and the reason why we don't even get to a trial is because it's unconstitutional to force and accused, be it the president of the United States -- former president or anyone else to stand trial on protected speech. And I think that's what Alvarez and the progeny previous to that and after say.

MCAFEE: All right. Thank you, Mr. Sadow. All right. Mr. Gillen, do you need a minute before we dive in or can we get started? OK.


MCAFEE: OK. So, just teeing this one up. I know there's a good bit of your motion --

LAURA COATES, CNN ANCHOR: We have been listening to this oral argument before the judge in this hearing today that's trying to lay out reasons that he -- that the Trump team and another defendant believe that this should be dismissed on First Amendment grounds.

I want to go to our panel here who is champion at the bit to weigh in. There's a lot to unpack here on what we have seen. The primary point, of course, being that they believe that the First Amendment -- the Trump council believe the First Amendment and protected speech should not should not be overturned or not be by the indictment.

Let's go to Elie Honig first. Elie, tell me what you are seeing here and hearing through these arguments today.

ELIE HONIG, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: So, Laura, the core argument that we just heard from Donald Trump's lawyers is that everything he's being prosecuted for here is protected First Amendment political speech. And you heard the lawyer argue that even if the speech is false, even if it's unpopular, it's still protected.

Now, the response from the prosecutors, from the D.A.'s here, is that no, he crossed the line to where his speech became part of the charged criminal acts. Now, there's a sort of separate dispute here about whether the court has to accept the indictments as -- the allegations as they are in the indictment. Donald Trump's team says, why do we just have to take it as a given that this was illegal because that's what it says in the indictment, don't we get to contest that?

And, Laura, that led to sort of the last point that we heard there, which is the question of when does this First Amendment issue get decided? And you heard the judge sort of say, well, why don't we -- isn't the way we decide this as we put it in front of the jury and we let the jury decide at trial? Donald Trump's lawyer objected to that. He said, no, we'd like you to throw it out now. Why go through with the whole exercise of a trial if this indictment ultimately is going to be no good?

Really important one other thing to note, Laura, this same argument was made by Donald Trump in his federal case in Washington, D.C., relating to election subversion. And the federal judge there, and you heard reference to this, Judge Chutkan, she rejected that First Amendment argument. She said, no, I find this is not protected speech. It crossed the line into criminality and we'll leave it for the jury.

So, Trump's team is fighting an uphill battle here legally, but the judge is willing to hear them out.

COATES: I mean, they are fighting. I want to go to our table as well. It wasn't just that Judge Chutkan said she rejected it, she was saying, look, if it turns out that you cannot prove it was a false statement or a knowing false statement, then he hasn't been convicted. It doesn't mean the indictment itself is problematic.

Sara, let me go to you here. You've been covering this story really since the beginning of it all. You're hearing arguments being made that suggest that all of this was just political speech. It's what's done, Sara, and everyone else is naive if you think this is not how the game is played.

SARA MURRAY, CNN POLITICAL CORRESPONDENT: Yes. I mean, I think you hear Steve Sadow, Trump's attorney there, saying, look, these are tweets. These are phone calls. And, you know, even if he is providing false statements, even if he's making false statements, that the way to handle this is to rebut them with truthful statements, not to prosecute the former president for the way he made these false statements.

And I do think it was telling that we saw, you know, Donald Wakeford, one of the prosecutors on the D.A.'s team, come up and say, this is not just about Donald Trump showing up, going in front of America and lying. That's not what this is. This is about making sworn statements that you knew were false in documents and submitting those to the government. This is about using those lies in furtherance of a criminal conspiracy, in furtherance of a scheme that violates George's RICO law.

And again, we saw another one of the prosecutors stand up and point out that not every one of these things that he did has to be a crime in and of itself. That's the way George's law works. The phone call itself doesn't have to be a crime. The Tweet itself doesn't have to be a crime. It's about how this all builds together to the broader racketeering conspiracy here.

And so, again, I do think that it is an uphill battle. We'll see, though.


COATES: Well, we'll see. I mean, certainly, it's uphill when you have them only talking in legal terms. I mean, at -- I mean, quarter words are fine. Why the $10 stuff, lawyers take note.

Anyways, Kristen, when you're looking at this politically, he's saying, and that's been his party line the entire time, this is just me talking and my campaigning. What am I to do? I'm a campaigning person, I believe the laws have been violated by not saying that I won, so I'm doing.

KRISTEN HOLMES, CNN CORRESPONDENT: And he continues to do that today. I mean, this wasn't just in 2020, this is his entire line of argument all the time. But I will say this, you know, I'm talking to Donald Trump s team, this isn't an argument that they're banking on. They are not expecting this 100 percent to work.

This is, as they continue to remind me, that they are paying lawyers in all of these cases a lot of money, and they should be exhausting every single avenue and spending as much time as they possibly can to draw this out. And if they aren't, then they aren't doing their job. And remember, the main tactic here, as we have said over and over again, is to delay this beyond the November election. And that is the point of why they continue to file separate motions, all of these pre- trial hearings.

You're not going to see it stop, because what they're trying to do is push -- you know, we heard Fani Willis saying she still wants that August court date, they were trying push beyond November.

COATES: And, Paula, real quick, what do you think in terms of the main takeaways here? You've been covering this from all angles and their whole tactic is delay, in this case, dismiss.

PAUL REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: And there's a long game here, right? Because the delay game could run out at some point. So, I am told they are playing the long-game, even if this won't win, of course they're going to file every actionable item on behalf of their client, as they should.

They also have to files some of these things so they don't wave them on appeal. And their strategy for appeal is they hope that over the course of -- if there is a trial, of the trial in this entire case, there'll be enough mistakes that add up that they can perhaps get this tossed sort of death by a thousand cuts. So, they are playing the long game.

COATES: Really quick. Paula, tell me this. Who is Shafer? Remind the audience because this is -- his attorney getting ready to talk. We're about to actually go to the hearing. Quick answer about who he is.

REID: He's one of the alleged fake electors.

COATES: Let's hear him.

CRAIG GILLEN, ATTORNEY FOR EX-GA REPUBLICAN PARTY CHAIRMAN DAVID SHAFER: -- as -- after it was filed, it talks about how other case law in Georgia, when it talks, about first of all 16-10-23, doesn't define public officer. So, we start from that, so we've got that out there, does not defining the public officer.

Now -- but the still pleading does say that the issue of what -- who is and is not a public officer is addressed in other contexts in Georgia law, usually in the "merit proceedings" where somebody is trying to find out the legitimacy of somebody having or holding a particular office.

And in that context, there are cases citing in this still pleading that address this very matter. They cite Brown v. Scott and -- as a case in which the Brown v. Scott case, you know, whether or not an individual has designation or title given to him by law or exercises functions concerning the public assigned to them by the law, they cite Brown, that doesn't -- the inquiry doesn't really end there.

The George Supreme Court has termed -- noted the term public officer involves the idea of tenure, duration, fees, emoluments, and powers as well as that of duty. And so that's a McDuffie v. Ferguson and that has to do really with grand jurors.

So, when someone says, well, it is a grand juror, a public author, and the court, you know, breaks down an analysis talking about that saying, not really because grand jurors may only meet for a few days. You know, they're not essentially -- you know, they're not there for some sort of duration or tenure. They don't take the same oath of office as prescribed for public officers. And they lack the element of tenure and duration, which must exist to qualify as a public officer.

Well --

MCAFEE: So, how would that apply, again, to like a purely fictional task force?

GILLEN: Well, I mean, let's forget the purely fiction taskforce. It would -- let us have it -- that -- the case law from our Supreme Court, how it applies to our case and how it applies to our cases, the presidential electors are not people who have a lengthy tenure duration, which it must exist. Frankly, their job is to meet for one day.

MCAFEE: I see your framework there, but if the framework is actually in this -- whereas Metro Atlantic human trafficking, of course it doesn't even exist.

GILLEN: Well, it doesn't. But someone is pertaining to be an agent --