A judge in Fulton County, Georgia, heard arguments Thursday on pretrial motions in the court case alleging that then-President Donald Trump interfered in the state’s 2020 presidential election results.
Arguments on the motions lasted two hours. Superior Court Judge Scott McAfee didn’t make a ruling, nor did he say when he would.
Former judge and prosecutor Cully Stimson, a senior legal fellow at The Heritage Foundation, joined this top news edition of “The Daily Signal Podcast” to discuss when McAfee might rule and what a ruling against Trump would mean. (The Daily Signal is Heritage’s news and commentary outlet.)
Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: Explain a little bit of the background here. Why did Fulton County District Attorney Fani Willis bring this case against former President Donald Trump?
Cully Stimson: The basic allegation, and there are a lot of charges in this wide-ranging indictment, is that he violated the state racketeering corruption statute, RICO, by essentially trying to overturn the election in Georgia and get state electors to not certify the election for [Joe] Biden. And so, according to the state’s theory of the case, he did this by a variety of means—calling people, tweeting, twisting arms, figuratively speaking.
And so now, we’re in the pretrial stages of that case. And I can tell you, as a former judge and a former prosecutor, this is not sexy stuff. Usually, the pretrial stages, there’s no Perry Mason moment, there’s a lot of motions by a defense, there are counterarguments by the government. So, this is the “just make the donuts phase” of a criminal trial.
So I’m not surprised that Judge [Scott] McAfee didn’t issue a ruling from the bench. And I can go into the arguments that were made today. And there’s a reason why you wouldn’t, as a judge, issue a ruling on something as complicated as these pretrial motions.
Allen: Were there any moments that stuck out to you during those two hours, during the hearing?
Stimson: Honestly, what stuck out to me is that nothing stuck out. This is the bread and butter of typical criminal cases. You see a collegial discussion by a judge, who’s clearly comfortable in his robe, and prosecutors making arguments of why, at this stage in the case, the court should either not consider the defense’s motion because it’s premature or should outright deny the defense’s motion. And you hear the defense say, “No, this is ripe now to take up, and here’s why you should rule for us.”
And that’s very standard, and that’s why Court TV doesn’t cover these types of things in your average case. I’m sure there are tens of thousands of motions like this being argued in courtrooms across the country, and except for the litigants and the family members associated with the case, no one’s paying attention because this is the grist of prosecution pretrial motion work.
Allen: So what happens next?
Stimson: Well, this series of motions is really pivotal for Trump and other defendants similarly situated because the gravamen of the defense motion today is whether the charges, and the defense counsel went through all of them, by my count, are actually precluded because it’s core political speech protected by the First Amendment.
So, they’re going for broke. They are arguing that, regardless of whether what he says is true or not, in the phone calls and all the rest of it, what he did as a political actor and the overt acts he took—like tweeting, etc.—is core protected First Amendment political speech. And therefore, Judge, you should dismiss these charges now and put this thing to an end.
So it’s the big tamale. They’re asking for the big ask.
What the government is saying—and they’re citing a Supreme Court case that perhaps a lot of our listeners are familiar with, it’s the stolen valor case, the case where the guy claimed that he was a Medal of Honor winner, and so it was a question of whether or not he could be held to account for that speech.
And the government is saying, “Look, this is speech that is integral to criminal conduct,” and they pointed out, which is true as a matter of law, that some speech in and of itself is criminal. If you solicit somebody to commit a criminal act, like solicitation for prostitution, for example, once the words exit your mouth, the crime has been committed.
The government gave various other examples, including in the Alvarez case that the Supreme Court upheld the conviction for that type of speech. And they’re also saying, even if some of the overt acts he took—like tweeting, etc.—were lawful, the Supreme Court has already said that certain overt acts that are in furtherance of the conspiracy to commit these state law crimes, and even if they’re protected core political speech, we don’t have to prove that they’re false or true, they’re admissible because they’re in the furtherance of committing these crimes.
So the government is saying, “Don’t rule now, Judge,” and the defense comes back and says, “Look, we’re not saying that these charges are constitutional writ large on their face. We’re saying, as applied in this case, this is core protected political speech.” And the government’s going back and forth with the judge, saying, “No, Judge. And even if it is, now is not the time.”
So the judge’s big question, which I thought was the most interesting part of the hearing today, was, “Well, when is the right time for me to rule?” And the government says, “Well, we defer to you, Your Honor,” which is always a smart thing to say to a judge, “but perhaps at the end of the government’s case-in-chief,” which means after they’ve put on all their evidence.
And the defense, of course, never wants to hear that because the defense is, like, “What, you want us to go all the way through picking a jury, all the way through opening statements, all the way through the monthslong trial, and at the end of the government’s case, then bring this motion again? By then, the damage is done.” Well, it’s actually not done, it’s the end of the government’s case.
So the judge is going to have to answer a few of these basic questions. One, whether the defense’s motion on an as-applied basis is ripe, in other words, is it ready to be ruled on? If so, he’ll rule. If it’s not, when should it be brought?
And my gut tells me that the judge will punt, like most judges do. I did when I was a judge. I didn’t rule until I had to rule, which is what you learn in judge school.
My guess is that, because these statements are, yes, they’re speech, but they are—when you view the evidence in light most favorable to the government, which is the standard at this point—part of the criminal conspiracy, at least according to the government.
So my guess is he’ll deny this particular motion at this point in time, and then if there’s a trial, see how that plays out along the way.
So this isn’t sexy stuff, these pretrial motions, and there are going to be a lot more motions, Virginia. The defense was starting to bring up other motions, and I think the judge has had enough of it. So there’s going to be a lot of days in court like this in a trial like this. And this is common in criminal cases.
Allen: So it sounds like we’re not looking at getting a ruling anytime in the immediate future.
Stimson: No. And frankly, I wouldn’t expect there to be. Typically, in criminal trials at the state level, there are no constitutional issues. And rarely when they pop up, judges will defer on ruling on the constitutional issue because there’s this doctrine called the Doctrine of Constitutional Avoidance, where you avoid ruling on a constitutional issue and you rule on a statutory basis. So the judge is clearly aware of that.
So this judge has been open to both sides’ arguments, and clearly, Judge McAfee has already taken away some charges already in the case. So we won’t see a ruling for a week or two.
Allen: If Judge McAfee rules against Trump, what does that mean for the former president?
Stimson: It means that, at this juncture in time, he simply did not grant their motion to dismiss the charges on an as-applied basis, probably because they’re not ripe to bring up the motion.
Now, you get a lot of bites at the apple as criminal defense counsel, and I was one, in criminal cases. And so just because they bring this as-applied challenge now and the judge denies it, let’s assume that he does, they’re perfectly capable of bringing that, and they should bring it again at the conclusion of the government’s case-in-chief, after the government puts all of their evidence on.
And that is exactly what they’ll do because they’ll make a motion for a finding of not guilty, and they’ll base that on a lot of things, either failure of proof of evidence, and they’ll go through charge, by charge, by charge outside the presence of the jury, and they’ll also bring an as-applied challenge to dismiss the charges or a motion for a finding of not guilty. And by the way, that’s not appealable. And so if the judge finds him not guilty because there was a failure of proof, well, the state is stuck with that.
Allen: Does this case have ramifications for the 2024 elections? And if so, what?
Stimson: I almost thought that was a trick question because I think what we’ve seen as a political matter—and you know I don’t do politics, I just do law and policy—every time he gets charged by one of these prosecutors, his poll numbers go up. And so I think the answer has to be yes, but don’t ask me how because I have no idea.
And as is typical, the defense waived the presence of the president and the other defense counsel waived the presence of his client. And you’ll see a lot more court hearings in these pretrial stages where the client is just not there.
