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Hearings Continue in Trump Georgia Election Case. Aired 11- 11:30a ET

Aired March 28, 2024 - 11:00   ET



JUDGE SCOTT MCAFEE, SUPERIOR COURT OF FULTON COUNTY, GEORGIA: Whereas the metro Atlanta human trafficking, of course, it doesn't even exist.



GILLEN: But someone is pretending to be an agent.

MCAFEE: Maybe they're part-time?

I mean, it just -- it seems like it -- you know what I mean?

GILLEN: Well, you see, we might agree to disagree here, because I think that when you're -- when someone says, well, I'm -- here's my badge, I'm an agent of enforcement of the law for, and then names a particular entity that doesn't even exist, they're pretending to be a peace officer.

They're pretending to be an agent for the government, which, by the very nature of that job, would have tenure, would have responsibilities...


GILLEN: ... would fall into the definition that the Supreme Court has given in Brown v. Scott and McDuffy v. Pearson (ph) as to what a public officer should be.

And so in that context, we have -- we have the same thing, actually -- it popped up again on the issue of Morris v. Peters, another case, Supreme Court case, dealing with whether or not someone is a public officer. That had to do with quo warranto against the chairman of the Georgia Democratic Party and whether or not he would fall in as a public officer.

Bottom-lining it, like in that case, which found that he was not, like grand jurors and public officials, party officials, presidential electors are not public officials under Georgia law, especially for purposes of 1610-23.

Their jobs, services are temporary, like the grand juries. They -- that position really only arises once every four years. It is limited to a single meeting on a single day. So it lacks that element of tenure and duration which must exist.

So it's kind of like back to the political case, Morris v. Peters case, which dealt with the state party political chairman, nominated in accordance with the rules of their party. But just because of the fact that they were nominated by the rules of their party doesn't make them a public official.

So -- and like grand jurors, presidential electors don't receive -- they're not receiving their salaries for their service. So all of that, Your Honor, tells us that the -- this particular count is flawed for the very purpose of these -- these electors cannot be under Georgia law public officers.

And so we -- although we agree with the court's initial position regarding the limitation on the definition of public officer in our pleading, good old Tom Bever in the Still pleading has come forward to rescue us on that point.

And so if you look at what they did -- and, hopefully, Tom will do a better job of articulating those points -- in their pleading, they talk about specifically some other cases that get into either in Texas and I think Utah as well that deal more specifically with this.

But for the purposes of argument today, I think that we have sort of got the drift on what I think is happening on the impersonation of public officers. They're not public officers. And, clearly, under the direction, we believe, of the -- of our Supreme Court, they could not be so judged.

Now, again, I'm not going to spend a whole lot of time up here with the court, but I do want to touch on a few of the other components of our pleading.

The forgery counts. Now, we indicated in those counts 10 and 16 are sufficient to dismissal. Writing a check in a fictitious name or a manner that the writing is made or altered purports have been made by another person, that's the definition of 1610.

We have -- what we have here in this indictment is we have an assertion that a writing or other than a check in a manner that the writing has made, purports to be made by authority of the duly elected and qualified presidential electors from the state of Georgia who did not give such authority.


Now, that's what they allege. Let's break that down as to why in the state's response to us, it's saying they want to focus on the phrase under the authority. And what we have here is the concept of what is the authority.

Who is this on -- October the 14th, who was the duly -- it's -- excuse me -- the duly elected and qualified presidential electors from the state of Georgia who did not give such authority on December the 14th, 2020? Now, the answer to that is that, as it is a matter of law, simply as a

matter of law -- and now we're going back, Your Honor, to some of the arguments we have made with the court earlier on the issue of Supremacy Clause, worthy of at least highlighting some of those points to the court for the purpose of making our point here.

And that is this, that under the federal law, as it existed in 2020, when the state of Georgia failed to comply with federal law about having an adjudication of any pending controversy or litigation, then, as we know in the public record in this courthouse, was the pending and unresolved Trump and Shafer litigation the election.

Now, because that lawsuit was not adjudicated pursuant to federal law, then the state of Georgia lost its ability after safe harbor day, lost its ability to then name who the electors should be. And as we discussed earlier, and I will shorten the argument, but for the sake -- purpose of the record, I will just make the following points.

Once that happens, and it's very, very clear from federal law and from the language from Bush v. Gore, the state, any state...

MCAFEE: The dissenting opinion in Bush v. Gore.

GILLEN: Yes, true.

But as it points there, it's like it's not -- they see it as not even a serious issue, because the clear reading of the statute would say, if you don't get it done by safe harbor day, then you have lost out. And once that happens, the power then shifts back to the Congress.

So, as of -- by law, we think, not a factual issue -- by law, on December the 14th, 2020, there were no, there were no duly elected and qualified presidential electors from the state of Georgia because of that failure.

And so...

MCAFEE: I understand your point, and I don't want to get too deep into it, but since we're in demurrer world here, wouldn't your allegation of whether a lawsuit was filed, whether it was pending, no, that's an indictment. Doesn't that transform this into a speaking demurrer?

GILLEN: Well, we don't think so.

And the reason why we don't is, the last time, I think we quoted the court, so the court could take a notice of the pleadings within the court system. And I believe...

LAURA COATES, CNN HOST: we have been listening to this hearing in Fulton County in the Trump Georgia election case. Recall that there are at least two defendants now who are asking this case to be dismissed on First Amendment grounds, saying that this is all protected political speech, and, therefore, the allegations made in the indictments are not enough to change that calculus. We're hearing from one of the attorneys, Mr. Gillen, who is counsel

for a man by the name of Shafer, who is one who has been alleged to be a fake elector in the overall scheme, one of now 14 remaining defendants in this act, after several have already pleaded guilty.

I want to bring in Sara Money -- Sara Money. Talk about Sara Money.


COATES: You are money when it comes to this.

Sara Murray, and we're talking about this issue.

Remind everyone who this David Shafer is and the fake electors scheme that's so part of this RICO.


So, David Shafer was the former chairman of the Republican Party of Georgia. And, of course, we saw this effort in several battleground states for the Trump team, to organize their own Republican electors, the idea was, we're going to put forth these alternate slates of electors, fake slates of electors in states that Joe Biden won.

And we're going to use these to contest the results of the election on January 6 and eventually be able to overturn the election. So that was sort of the thinking behind this scheme. Now, in Georgia, they put forth this fake slate of electors. David Shafer was one of them. But he also played a role in helping to organize the other folks who served as fake electors.


He's alleged to reserve the room where the fake electors met and did their whole ceremonial signing of this document, saying that we're the Republican electors for the state of Georgia, again, a state that Joe Biden won.

And so now his attorneys are here in court arguing a couple things. They're taking issue with the way he's described as a fake elector in the indictment, essentially saying that the indictment shouldn't be alleged that he was a fake elector or that that activity was illegal.

They're also saying he has an advice of counsel defense because all of these actions that he took essentially were under some kind of legal representation, saying these are OK steps for you to take. We have heard this argument from a number of folks who served as fake electors in the state of Georgia.

COATES: Interestingly enough, when one's making a advice of counsel claim, Paula, it's important to note that there have been a number of attorneys who have been implicated, if not disciplined or even indicted, in different respects.

You're talking about the likes of John Eastman, who was just recommended for disbarment yesterday. You have got Sidney Powell, Ken Chesebro, Rudy Giuliani, Jenna Ellis...


COATES: ... just to name a few, by the way.

REID: And that's a lot of lawyers.

I mean, when you consider a criminal case, to have that many lawyers charged alongside you is pretty extraordinary. Also, remember that three of those attorneys have already pleaded guilty, at least three of them in this case.

Now, part of the reason they pleaded guilty was to hopefully retain their bar licenses, because many of them are facing disciplinary proceedings. So it has been interesting to see the role of lawyers, both for President Trump and for the campaigns, being charged so broadly in this investigation.

COATES: And, of course, I will go to Elie here, because the idea that you are a lawyer does not somehow inoculate you from criminal activity, if you are yourself engaged in criminal activity. That goes for the privileges as well.

I want to bring you in here, Elie Honig, because I want people to really understand as well the fake elector who is being alleged here, Mr. Shafer, what is the significance of him in the overarching ability to prove a case for RICO?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So, he is alleged in the indictment to really be sort of the mastermind or at least the overseer of the Georgia effort to submit this false slate of electors.

And what his attorney is arguing here really is two things. First of all, he's arguing there's nothing criminal about this effort to put forward this slate of, as the defendants call them, alternate electors, as the prosecutors call them, fake electors. And that's an argument that's been made before, has been rejected before, and I think will probably be rejected here.

At a minimum, I think the judge is likely to say, well, that's for the jury. And then the second argument, and Sara Murray was just talking about this, is what we call advice of counsel. Now, we will hear this throughout the Trump cases, where a defendant can say, I did that because an attorney of mine told me it was OK.

Now, it's not quite that easy. First of all, the advice itself can't be ridiculous. It can't be something that the client actually knew or should have known was illegal. And the other thing is, anyone who argues attorney-client privilege, who says advice of counsel defense, who says, I did this because my attorney blessed it, when you make that argument, you give up your attorney-client privilege.

So all those otherwise secret, confidential communications between the attorney and the client, they will all come out if Mr. Shafer or anyone else actually makes that defense at trial.

COATES: Really important point.

I want to bring you in, Kristen Holmes, because this is -- there's so much of an elephant in the room. There is an election in 222 days. This is hoping, if you're Fani Willis, to go to trial in August, and yet the politics of this is inescapable.


And, actually, when you're talking about David Shafer, he's a really good example of what's happened to the Republican Party across the country. I mean, he was the chairman of the Georgia Republican Party. Georgia is going to be a critical state in 2024.

Biden won by such a small margin, as we know, Donald Trump obviously asking for those 11,000 votes that Biden won by, and that's part of what's on trial here. But the parties now across the country, particularly in these swing states, particularly in these states in which Donald Trump's attorneys at the time were trying to create these slates of alternate or fake electors, they still haven't really recovered.

And that's going to be a huge uphill battle for Donald Trump when he's running in 2024 against Joe Biden in what is expected to be a very close election, because you have some of these people who are still charged, who still are facing trial, who have actually fractured the Republican Party, which is not what you want going into a general election.

REID: As Kristen and I reported so many times, right, the strategy here is to delay.

So I want to note, I mean, here, the case is at least moving forward even while they appeal that disqualification decision. The judge is hearing motions. Fani Willis has said in recent days that she's continuing to prepare. I don't think it's realistic that this case is going to start in August.

But even the fact that this case continues to move, that is significant in the wake of this delay strategy.

COATES: We will see how quickly it moves if the judge rules today or takes it under advisement at the end of these hearings today.

Stay with us. We have got much more to discuss, including Trump's attorney's argument to get the case thrown out on First Amendment grounds.

Our special coverage continues after this short break.



COATES: We're back and following along with this hearing taking place in Fulton County over a request to have the case dismissed with respect to at least two defendants over First Amendment grounds. Let's bring in CNN's Katelyn Polantz and CNN legal analyst Michael


What are you guys hearing from what your take is from all that's being done?

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Well, Laura, what we're hearing today is a major moment in this case. It's the type of moment that happens in every criminal case, where judges have to look at the defendant's arguments to dismiss the case.


Donald Trump's argument here is that what he was saying was speech and it should not have been anything that should be criminalized in Georgia. Now, the judge is going to have to determine, are false statements that Donald Trump was making about the election to his supporters in tweets, is that something that can form this case, the conspiracy charges, the racketeering charges against him, even false statement charges that he's facing?

But on top of that, we're starting to see what's taking shape here, which is going to be the question for the jury about intent. There is an argument being made that the jurors are going to have to determine that these false statements may need to be something that they look at.

What's Donald Trump's intent? Was he just saying things that were false? Is that criminal? And there has been that presentation to the judge. If Donald Trump's team doesn't win at this stage, that is something that the jury's going to have to be...


MICHAEL MOORE, CNN LEGAL ANALYST: That's right. And I think you have heard some argument and some pushback from the state that this is really not about lying. He's not being charged with just telling lies.

He's being charged with telling lies in furtherance of some criminal activity. And so that takes you to the intent question. Was this why he was doing it? Was this the purpose behind it? Is this part of the effort, the conspiracy to either cover up or to expand the RICO enterprise? And so those are things typically that come out at trial.

The First Amendment arguments are unique. I did take a little interest to hear the prosecutors say, well, some judge somewhere else has already ruled on this. Well, we happen to have dual sovereigns in this country. And that is that there's a state court and a federal court. And this judge does not have to be bound by that federal judge. He has to be bound by the Supreme Court, obviously, but not here.

So it's a little bit interesting take. We will see how it goes.


And you're also seeing how this case is a little bit different from the case in federal court in D.C. about January 6, where they have been very keen in the cases that the federal special counsel has charged Trump to try and paint that picture of what he knew and that he knew that there was something -- it was something that was false and that he had the intention to mislead people and to have this lead people in the wrong direction, his supporters.

In this case, what his attorney, Steve Sadow, said in court today was there's nothing alleged here except the false statements. There's nothing -- there's no other evidence to be presented. So we're going to have to watch to see how the prosecutors actually present the case in court, because the facts are very similar.

But what ends up going to trial may be a different thing entirely as far as what they're putting forward to the jury.

MOORE: That's right. Right.

COATES: This is so important.

And, Katelyn Polantz, Michael Moore, we're going to continue to follow along.

Our coverage is going to continue right after a very short break.



COATES: We are back and following along with this hearing out of Fulton County, where Trump and another defendant are arguing for this entire case to be dismissed on First Amendment grounds.

They are saying that it's all political -- I don't know how to talk today -- political protected speech. And what's going on now is, you're hearing from one of the councils from Mr. Shafer, who is accused of being a false elector.

This whole thing revolves around whether the court is going to allow the case to be dismissed or to go forward. Fani Willis, of course, wants it to actually happen in August. Unlikely, but that's her request.

Let's go to Elie Honig for a moment here, because you have heard a lot be made about this sort of dual sovereignty, a fancy way of saying, look, who has to stay in their lane, Fulton County and follow their own court cases or what's happening in other cases? And there are many.

I want to turn your attention for a second, Elie, to what Judge Chutkan has had to say about a similar argument being made around the First Amendment. Specifically, she said that this has to go essentially to trial. Let's bring up that shot of what she had to say.

"While defendant challenges an allegation in his motion and may do so at trial, his claim that his belief was reasonable does not implicate the First Amendment. If the government cannot prove beyond a reasonable doubt at trial that, of course, defendant knowingly made false statements,he will not be convicted. That would not mean the indictment violated the First Amendment."

So it tracks in a different case, Elie, the similar argument about whether this should go before a jury or not. What do you think?

HONIG: Yes, Laura.

So I think we may see a very similar ruling from this judge here, who's in state court in Georgia. And, yes, the federal courts and the state courts are separate. And, no, this judge is not bound by what Judge Chutkan found, but I do think he's likely to adopt a similar analysis.

And, Laura, what we have been seeing here today is really important, because I think it's going to be a preview of what we see when this case and the other cases go to trial. They're going to be arguing to the jury this First Amendment issue. We're going to see Donald Trump and perhaps other defendants argue that what we were saying was political speech.

Even if it was unpopular, even if it was ultimately untrue when we claimed that the election was stolen, it's protected under the First Amendment.

What we will hear in response from prosecutors here and in the federal case is, no, your speech crossed the line. Not all speech is protected. Speech can be a crime, in and itself, and speech can be used to further a crime. And the allegation here is, your speech, yes, it was false, but that's not why we're prosecuting you. We're prosecuting you because your speech was part of an overarching scheme, a conspiracy.