On Thursday, a prosecutor in Fulton County, Georgia, heard arguments over a lawsuit challenging the court’s claim that then-President Donald Trump harmed the state’s 2020 presidential poll results.
The movements ‘ claims lasted for two hours. Superior Court Judge Scott McAfee did n’t make a ruling, nor did he say when he would.
In this week’s” The Daily Signal Podcast”  , former judge and prosecutor Cully Stimson discussed the potential for a ruling against Trump and what a ruling would mean for the Heritage Foundation. ( The Daily Signal is Heritage’s news and commentary outlet. )
Study the lightly edited transcript or talk to the radio below.
Virginia Allen: Explain a little bit of the background below. Why did past president Donald Trump face legal action from Fulton County District Attorney Fani Willis?
Cully Stimson: The standard allegation, and there are a lot of expenses in this broad- ranging indictment, is that he violated the state racketeering corruption statute, RICO, by basically trying to reverse the election in Georgia and get state delegates to not certify the election for]Joe ] Biden. And therefore, according to the state’s idea of the case, he did this by a variety of means—calling people, tweeting, twisting hands, metaphorically speaking.
And so today, we’re in the preliminary stages of that event. And I can tell you, as a former prosecutor and a previous attorney, this is not beautiful things. Generally, the preliminary levels, there’s no Perry Mason time, there’s a lot of motions by a protection, there are counterarguments by the state. So, this is the” only make the cakes stage” of a criminal trial.
So I’m not surprised that Judge]Scott ] McAfee did n’t issue a ruling from the bench. And I can go over the points made immediately. And there’s a reason why you would n’t, as a judge, issue a decision on something as complicated as these pretrial motions.
Allen: Were there any events that stuck out to you during those two days, during the reading?
Stimson: Actually, what stuck out to me is that everything stuck out. This is the foundation of all standard legal cases. You witness a judge having a group discussion about how a judge should proceed with the case because it’s too soon or should openly reject the defense’s motion. The judge is clearly comfortable in his robe. And you hear the defence say,” No, this is mature now to take up, and how’s why you should rule for us”.
And that’s very common, and that’s why Court TV does n’t handle these types of items in your regular event. Except for the defendants and the family users associated with the situation, there are tens of thousands of motions like this being argued in courtrooms across the country, and no one is paying attention because this is the grain of prosecution judicial action work.
Allen: So what happens next?
Stimson: Well, this set of motions is really crucial for Trump and other defendants in similar circumstances because the key issue in the defence movement today is whether the charges, and the defense counsel went through them all, in my opinion, are really precluded because it’s the main political speech speech protected by the First Amendment.
So, they’re going for broke. They contend that whatever he says in the phone calls and the rest of it is true, as well as the obvious actions he took, such as tweeting, etc. is fundamentally 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.
The government is quoting a Supreme Court case that perhaps a lot of our listeners are well-versed in, which involved a man who claimed to have won the Medal of Honor, and it was a question of whether or not he could be held accountable 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 provided a number of other examples, including the Alvarez case in which the Supreme Court upheld the conviction for that line of argument. And they’re also saying, even if some of the overt acts he took—like tweeting, etc. —were lawful, the Supreme Court has already stated that some overt acts that are in the context of the conspiracy to commit these state law crimes are admissible because they are in the context of committing these crimes. Even if they are protected core political speech, we do n’t need to prove that they are false or true.
So the government is saying,” Do n’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.
Therefore, the judge will need to respond to a few of these fundamental inquiries. 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 I know, like most judges, the judge will punch, as my gut tells me. I did when I was a judge. I did n’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 that he wo n’t deny this particular motion at this time, and then, if there is a trial, watch how that turns out along the way.
So this is n’t sexy stuff, these pretrial motions, and there are going to be a lot more motions, Virginia. The defense was beginning to raise additional motions, and I believe the judge has already had enough of them. In a trial like this, there will be many more days in court. And this happens frequently in criminal cases.
Allen: It seems as though we wo n’t be anticipating a decision until after this is resolved.
Stimson: No. And frankly, I would n’t expect there to be. Typically, in criminal trials at the state level, there are no constitutional issues. Because of the doctrine known as the Doctrine of Constitutional Avoidance, which states that you avoid ruling on a constitutional issue and rule on a statutory basis, judges rarely defer on ruling on a constitutional issue. The judge is therefore acutely 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 wo n’t see a decision 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 he does, and they should do so once more after the government has put all of their evidence on the table.
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 the state is stuck with that if the judge finds him not guilty because there was no lack of proof.
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 do n’t do politics, I just do law and policy—every time he gets charged by one of these prosecutors, his poll numbers go up. So I believe the answer must be “yes,” but do n’t ask because I have no idea.
And as is customary, the defense waived the president’s presence, and the other defense counsel waived the client’s presence. Additionally, you’ll hear much more court hearings during these pre-trial stages where the client is n’t present.
