Trump, Co-Defendants Seek to Appeal Fulton County First Amendment Ruling

Echoing a move made following Fulton County Judge Scott McAfee's ruling regarding the motions to disqualify District Attorney Fani Willis from the criminal case involving former President Donald Trump and multiple other defendants, Trump and several co-defendants are once again seeking certification of a ruling to allow for an immediate appeal.

On April 4, McAfee denied defendants' motion to dismiss the case on First Amendment grounds.

On Monday, Trump's lead attorney on the case, Steve Sadow, announced that Trump and other defendants were requesting that the court grant a certificate of immediate review (as it did on the disqualification motion) to allow for an immediate appeal on the First Amendment issue.

My statement as lead defense counsel for President Trump in the Fulton County, GA case:

“President Trump and the other unjustly accused defendants have jointly filed a motion requesting the Court to grant a certificate of immediate review of its Order denying their pretrial… pic.twitter.com/CITU5aeMtt
— Steve Sadow (@stevesadow) April 8, 2024

Sadow included the following statement regarding the move:

President Trump and the other unjustly accused defendants have jointly filed a motion requesting the Court to grant a certificate of immediate review of its Order denying their pretrial First Amendment challenges. The motion powerfully expresses that the Indictment wrongfully criminalizes core political speech and expressive conduct protected by the First Amendment. There is no democracy without robust and uninhibited freedom of expression. For these reasons among others, the Court’s Order is ripe for pretrial appellate review.

In the 16-page motion, which may be viewed in its entirety below, Trump and his co-defendants lay out the significance of the issue and why an immediate review of the matter is warranted, noting:

Defendants contend: (a) their challenged speech is core political speech related to the 2020 Presidential Election; (b) other than this speech, the Indictment does not challenge or point to any other activity that subjects them to prosecution; (c) and even if the Indictment alleges the speech “knowingly” or “willfully” false, which is what the law requires the Court to assume in considering Defendants’ pretrial motions, their speech is still protected by the First Amendment. Again, other than saying Defendants’ speech violated some criminal statutes, the Indictment does not specify what other “criminal conduct” Defendants’ speech advanced outside the context of advancing views on the 2020 Presidential election.
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The legal question regarding the nature and characterization of the speech at issue (core political or non-political speech) is outcome determinative when strict scrutiny applies to the challenged statutes. So, the question of what type of speech is targeted in the Indictment, and in the challenged statutes, demands appellate clarification and review. Whether the statements in the Indictment are “political” in nature is a question of law for the courts to decide.
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Rather, the State says that because it pled Defendants’ speech allegedly violates particular criminal statutes it is necessarily “integral” to the violations of those statues, and nothing else need be alleged. This novel, and purely circular, theory needs to be vetted by the Georgia appellate courts. For if it is accurate, then any First Amendment challenges (let alone core political speech challenges) are dead on arrival and can never support a demurrer in Georgia. That is because to hurdle the high First Amendment barriers to speech restriction, all the State would need to plead is that a defendant’s speech constituted a Georgia RICO violation (for instance) and nothing more. If this is the case, and the Court seems to say it is, then this is momentous, as it would vitiate First Amendment challenges to virtually all criminal indictments. The appellate courts should comment on this far-reaching, and erroneous, proposition.

Ultimately, the thrust of the motion is that the indictment fails to specify what criminal conduct, other than speech, the defendants allegedly committed and contends that the speech itself is core political speech, such that it is protected by the First Amendment (and therefore, not criminally punishable). Given the issues raised, and given his prior certification on the disqualification motions, it seems likely that McAfee will grant the motion and issue a certificate of immediate review. If he does, then yet another appeal will be litigated on the case before it makes its way to trial.

BREAKING: Fulton County Judge Certifies Order re: Willis and Wade to Allow for Immediate Appeal

Joint Motion for Certificate of Ir First Amendment by Susie Moore on Scribd