Georgia Judge Throws Out Six Counts Against Trump, Five Other Defendants

Georgia Judge Throws Out Six Counts Against Trump, Five Other Defendants

Fulton County Superior Court Judge Scott McAfee threw out six counts of solicitation of violation of oath by public officer against former President Donald Trump and five other defendants in Georgia.

McAfee dismissed count two, count five, count six, count 23, count 28, and count 38.

All counts regard allegations of telephone calls to Georgia’s secretary of state, members of the Georgia Senate, and Speaker of the Georgia House of Representatives:

• Count Two alleges that multiple Defendants solicited elected members of the Georgia Senate to violate their oaths of office on December 3, 2020, by requesting or importuning them to unlawfully appoint presidential electors;
• Count Five alleges that Defendant Trump solicited the Speaker of the Georgia House of Representatives to violate his oath of office on December 7, 2020, by requesting or importuning him to call a special session to unlawfully appoint presidential electors;
• Count Six alleges that Defendants Smith and Giuliani solicited members of the Georgia House of Representatives to violate their oaths of office on December 10, 2020, by requesting or importuning them to unlawfully appoint presidential electors;
• Count 23 alleges that multiple Defendants solicited elected members of the Georgia Senate to violate their oaths of office on December 30, 2020, by requesting or importuning them to unlawfully appoint presidential electors;
• Count 28 alleges that Defendants Trump and Meadows solicited the Georgia Secretary of State to violate his oath of office on January 2, 2021, by requesting or importuning him to unlawfully influence the certified election returns; and
• Count 38 alleges that Defendant Trump solicited the Georgia Secretary of State to violate his oath of office on September 17, 2021, by requesting or importuning him to unlawfully decertify the election.

The defendants claimed “that the indictment is defective because the charging language does not cite the oath each of these solicited public officers was required to take.”

The defendants also claim the counts did not include “the exact term of the oaths that are alleged to have been violated.”

McAfee wrote:

While the averments do contain a reference to the terms of the violated oaths, this Court finds that the incorporation of the United States and Georgia Constitutions is so generic as to compel this Court to grant the special demurrers. On its own, the United States Constitution contains hundreds of clauses, any one of which can be the subject of a lifetime’s study. Academics and litigators devote their entire careers to the specialization of a single amendment. To further complicate the matter, the Georgia Constitution is not a “mere shadow[]” of its federal counterpart, and although some provisions feature similar language, the Georgia Constitution has been interpreted to contain dramatically different meanings. See, e.g., Nels S.D. Peterson, Principles of Georgia Constitutional Interpretation, 75 Mercer L. Rev. 1, 11 (2023). This is in marked contrast with say, aggravated assault with a handgun, which can be perpetrated “in only a limited number of ways,” and an indictment that merely refers to a handgun is “not too vague” because it infers that “the weapon was used either as a firearm or as a bludgeon.” Arthur v. State, 275 Ga. 790, 791 (2002).

However! And this is why you must always read the footnotes. The footnote on page 8 stresses that the order “does not mean the entire indictment is dismissed.”

“The State may also seek a reindictment supplementing these six counts,” wrote McAfee. “Even if the statute of limitations expired, the State receives a six-month extension from the date of this Order to resubmit the case to a grand jury.”

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