0:00

Previously on Break Down. That

0:04

was already a pretty optimistic timeline that

0:06

the Da had laid out before this

0:08

disqualification fight. They of course one of

0:10

the trial to begin in August of

0:13

Two Thousand Twenty Four Judge Mcafee. You

0:15

never ruled on that, so was an

0:17

open question. But really, we've lost more

0:19

than two months to this removal fight.

0:22

In his order, Mcafee said he's

0:24

gonna continue working on the case

0:26

for godless of the appeal, even

0:28

whether it's excepted by the appellate

0:30

court, unless he's directed to do

0:32

otherwise. I

0:35

guess you could say the battle

0:37

has once again been joined. Ten

0:39

days after attorneys for former President

0:41

Donald Trump and eight of his

0:43

codefendants asked the Georgia Court of

0:45

Appeals to hear their disqualification challenge.

0:47

The Fulton County Da's office filed

0:49

his response. It urged the court

0:51

to give the challenge of pass

0:53

and send the case back to

0:55

Judge Scott Mcafee. The challenge of

0:57

course is to disqualify d A

0:59

Funny well the Center office from

1:01

the Election Interference case. The

1:04

appeals court has until mid May to

1:06

decide whether to accept the pre trial

1:08

appeal. If it hears the challenge, it

1:10

could be months before issues a decision

1:12

and any rolling could then be appealed

1:14

by the losing party to the Georgia

1:16

Supreme Court. It's another

1:18

big moment, one of many big

1:20

moments in this case, so we're

1:22

waiting. In the meantime, Judge Mcafee

1:25

continues to issue orders and consider

1:27

pending motions. We've. Got to say

1:29

that at some point we sure would

1:31

like to return to some sense of

1:33

normalcy, Although so far this case has

1:35

produced one surprise after another. This.

1:38

Is Episode Thirty eight: the appeal of

1:40

Season Two and a break down the

1:42

Trump Indictment from the Atlanta Journal Constitution.

1:52

Ocean Breeze Tropical Beach, Kenya

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collide and you can buy

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an air freshener to make

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your car smell like. In

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Oceanside Paradise or better yet,

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you can point. Your car

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toward Daytona Beach. And com experience

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the real thing. This is a

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town of each.com to discover all

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there is to seize. Do. And

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enjoy along the world's. Most famous

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speech to Daytona Beach. Florida

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Beach on. This.

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This episode is brought to you by

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Come back to break down the podcast

2:55

by the Atlanta Journal Constitution covering Georges

2:57

most important cases on bell rings in

2:59

the A to seize legal affairs reporters.

3:01

I'm a Gc senior reporter David

3:04

Wicket and I'm Shannon Mccaffrey senior.

3:06

Editor for Trump legal coverage. That the

3:08

ha see. Our colleagues Mar Hallerman

3:10

is off the sleek. To

3:13

one of those pending issues recently addressed

3:15

by Judge Mathis, he was emotion that

3:17

was filed on behalf of Trump. It

3:19

said the charges brought against the former

3:21

President should be dismissed because he can

3:24

not be criminally charged for political speech

3:26

protected by the First Amendment. These included

3:28

statements by Trump's to challenge the outcome

3:30

of the Twenty Twenty election in Georgia

3:32

and spoiler alert. Judge. Mathis. he

3:34

quickly issued an order on this. will get

3:36

to that in a bit. First,

3:39

let's take a dive into the

3:41

issue. Judgments be convinced. The First

3:43

Amendment Challenge Hearing on March Twenty

3:45

Eight. Trump. Attorneys do you say

3:47

now? takes the lead. To. The

3:49

person We have to decide whether or not. And.

3:52

We're talking about President Trump. We're.

3:54

Not talking about the actions of others, we

3:56

have to look and see whether or not

3:58

that which is really. It's to specs.

4:01

Is in fact. Core. Political

4:03

speech. Political discourse protected

4:06

speech at it's zenith.

4:09

But. I don't think there's any question that.

4:12

Statements. Comments: Speech Expressive

4:15

Conduct the deals with campaigning

4:17

or elections. He's always been

4:19

found to be at the

4:21

zenith. Of. Protected Speech.

4:24

At what do we have here. We. Have.

4:27

Election Speech. So. One.

4:30

Must determine immediately whether that constitutes

4:32

for political speech and I suggested

4:34

it does. It's

4:36

important to note that this is

4:39

what's called and as applied challenge.

4:41

In other words, the defendants can

4:43

be charged under a statute said

4:46

his constitutional on it's face, But

4:48

when the facts are the case

4:50

or applied to that statute, they

4:52

contend it becomes unconstitutional. And the

4:55

phone case, for example, Trump is

4:57

charged with racketeering and twelve other

4:59

felony counts save our says. All

5:02

those counts stem from his protected

5:04

political speech and trying to. Ensure

5:06

the two thousand and twenty election was

5:09

not stolen. The. Political

5:11

discourse. The political speech.

5:14

But. The the most. Significant.

5:16

And it is to sort issues. Clearly.

5:19

Being present, I'd states at the

5:21

time dealing with the Lexington campaigning,

5:23

calling into question whether when it

5:26

occurred. At

5:28

least in the election of Twenty

5:30

Twenty Four presidents. that's the height

5:32

of political speech. Set.

5:35

Out contends that the mere fact that

5:37

some of Trump's claims may have been

5:39

faults is not enough snakes and fraudulent

5:42

or criminal. What

5:44

the state wants to do was say

5:46

we have a goal. We have an

5:48

objective here that we put forward: Steal

5:50

the election in an unlawful fast. I

5:53

say to change that for a second to. Which.

5:55

Intimate. Concern. About the

5:58

validity of the election if. That.

6:01

Was. A way you focused on it. Which.

6:03

Is a way to do it as applied even with

6:05

the facts. Would. What President

6:07

Trump said on those camps.

6:10

Be. A. Protected. Speech and

6:12

answer is it has to be. Because.

6:14

The only thing that makes it

6:16

fraudulent interstate saying it's false. Take

6:18

every one of those and say

6:20

okay, It's. Not false. Is.

6:23

Protected. The only reason it becomes

6:25

unprotected in the states opinion is

6:27

because they call it Fox. We

6:30

have decided that because those views

6:32

were unpopular. And. In. States.

6:34

Opinion: false. We must prosecute them to

6:37

stop them from happening again. Which.

6:39

Is again the essence of why

6:41

it's unconstitutional as applies because that's

6:43

not what the law says. Saito.

6:46

Sums up his argument by contending there

6:49

is nothing alleged against Trump that is

6:51

not political speech. So.

6:53

What this court has to decide is. Is.

6:55

The states position? that is.

6:58

Fraud. Or false statements. Under

7:00

these circumstances, would I suggest really is

7:03

alone? Is that enough? To.

7:05

Get it by and as applied challenge opposition

7:07

is, it's not. His

7:10

or another way to look at this. They're

7:12

going to argue with the same five that

7:14

is interval to criminal conduct, but it's the

7:16

speech that's being punished. That

7:19

is the criminal conduct. If it's

7:21

not the criminal conduct. Their.

7:23

Would never be an indictment for

7:25

the recalls. Get present Trump or

7:27

any of these other counts Take

7:30

out the political speech no criminal

7:32

charges Political speech disagreed with basis

7:34

for all charges I I think

7:36

that is the best way for

7:38

me the summer where opposition they

7:40

must say now. Is.

7:42

Now time for Donna Lakefront who we

7:44

have to say as emerged says one

7:46

of the stars on the Fulton Prosecution

7:49

Team. His arguments before Judge Robert Make

7:51

Bernie in the Special Purpose Grand Jury

7:53

investigation in Federal court on the removal

7:55

issue and now in this criminal proceedings.

7:58

They've all been easy to follow. Persuasive

8:00

and most often victorious. And

8:03

his legal briefs so well

8:05

written. We. Really

8:07

appreciate well written, Needless

8:09

to say, wait for vigorously disagrees.

8:11

As safe as take on the First

8:14

Amendment protections. To. Address the

8:16

first or think Elsa in this. Courtroom.

8:19

Is that a a judge shotgun in

8:21

Dc has a way to? All of

8:23

these arguments are under supreme court process

8:26

already. So I

8:28

would refer your honor to the courts

8:30

analysis because I'm hardly going to improve

8:32

upon the findings of the federal judge.

8:35

We. Were wondering when that would come

8:37

up In the Federal Election Interference case

8:39

brought by Special Counsel Jack Smith. Trump's

8:42

lawyers raised very similar arguments to those

8:44

being argued now by sit out. In.

8:47

A ruling in December Judge

8:49

Tania Shotgun found Trump's indictment

8:51

did not violate the First

8:53

Amendment. She wrote quote: It

8:55

is well established that the

8:58

First Amendment does not protect

9:00

speech that is used as

9:02

an instrument of a crime,

9:04

and consequently the indictment which

9:06

charges Trump with among other

9:08

things making statements in furtherance

9:10

of a crime does not

9:12

violate Trump's First Amendment. Week.

9:15

For makes a similar. Argument here. The

9:18

defendant is suggesting today that that is somehow what

9:20

the states during would actually what state is saying

9:22

is that. These. Statements made

9:25

by the defendant or all

9:27

employed as part of criminal

9:29

activity Various conspiracies: Frauds.

9:33

Intentions with deceit and violations

9:35

of law. It's not just

9:37

that they were false. Is not of

9:39

the defendant has been hauled into a courtroom

9:41

because the prosecution doesn't like what he said.

9:44

He. Is free to say. To.

9:46

Say to make statements. And

9:49

to file lawsuits and to make

9:51

other legitimate protests. What? Is not

9:53

allowed to do. Is. Employ his

9:55

speech and his expression and his

9:57

statements as part of a criminal.

10:00

Spirits The. To. Violate Georgia

10:02

Ricoh statute. To. Impersonate public

10:04

officers to fall false documents and

10:06

to to bake false statements to

10:08

the government that's what is alleged

10:11

to. And he says

10:13

this. He's. Not been

10:15

prosecuted, For. Like he's been prosecuted for

10:17

lying to the government a state as an

10:19

act which is illegal because it does harm

10:21

it to the government. That's. The

10:23

reason that it's illegal. Wait, For

10:26

it says that, especially with

10:28

the Rico count, Trump is

10:30

charged with overseeing a criminal

10:32

organization and it's members and

10:34

associates engaged in various criminal

10:36

activities such as making false

10:39

statements and writings, impersonating a

10:41

public officer, forgery, filing false

10:43

documents, influencing witnesses, and computer

10:45

trespass. Trump. Suggests that

10:47

even if those statements were false, the

10:49

charges must be dismissed. But wait for

10:51

it. Says that's not the end of

10:53

the inquiry. Far from it. Is

10:56

not just that he lied over and

10:58

over and over again. As Council for

11:00

the Defendant points out by listing all

11:03

of the instances in the indictments is

11:05

that each of those was employed as

11:07

part of criminal activity with criminal intense.

11:09

Think about it, as knows lox, but

11:11

as legitimate concern about election issues. Well,

11:14

that sounds like a trial argument to

11:16

me when this is why I began

11:18

by talking about insert with Your Honor

11:20

because I knew we were going to

11:22

end up in this exact place. Where

11:25

said sir, you can. Look at him

11:27

as lies because they weren't true or

11:29

you could think this is just well

11:31

intentioned concerns from us american citizen speaking

11:34

his mind. And. That,

11:36

of course would probably be a pretty good

11:38

argument for before a jury and I expect

11:40

we will see it, but it's not a

11:42

basis for dismissing the and. Wait

11:45

for it. Sums up by saying Trump

11:47

can't argue that the First Amendment protects

11:49

him because all his speech is protected

11:51

by the First Amendment. In

11:53

the end no matter how much

11:55

we hear about the of obviously

11:57

the noble. Protections. Afforded

11:59

by the first mehmet. All of this

12:01

is an effort to get your honor

12:04

not to look at the basic fact

12:06

that this speech this expression all this

12:08

activity is employed as part of a

12:10

pattern of criminal conduct in a host

12:13

of ways. And. Because

12:15

your honor his family indictment has to look

12:17

at the indictment and can't move beyond it.

12:19

If if if we're gonna get into this

12:21

at this stage then there's nowhere to go.

12:23

As I said at the beginning. Because.

12:25

This is all those just part of a pattern

12:27

of criminal conduct. And. Not protect about

12:30

first amendment any arguments the other. otherwise this

12:32

is to try to pretend like that's not

12:34

true. By some sort

12:36

from space heater on. As

12:38

the said the judge seen issue to

12:40

solder. Just. One week later

12:42

and Judge Mcafee is becoming

12:44

the anti I Cannon sees

12:46

the flirted judge overseeing the

12:48

classified documents case and she's

12:51

been criticized for dragging their

12:53

feet in issuing rulings. Massey

12:55

has been lawn efficient terrorists,

12:57

They'll tell us how his honor rules. Will.

13:00

Judge Mcafee rules and savor

13:02

the states and dismisses the

13:04

challenge and uses language similar

13:06

to what Judge Chuck can

13:08

used in the Dc case.

13:10

He notes that the law

13:12

does not insulate speeds allegedly

13:14

made during fraudulent her criminal

13:16

conduct from prosecution under the

13:18

guise of petitioning the government

13:20

and even core political speech

13:22

addressing matters of public concern

13:24

is not impenetrable from prosecution

13:27

if allegedly used to further

13:29

criminal activity. The. Judge notes

13:31

that in a free trial

13:33

towns such as this one

13:35

as.awake for just said he

13:37

has to accept the allegations

13:39

in the indictment as the

13:41

truth And in doing this,

13:43

he says the speech alleged

13:45

in the indictment is integral

13:47

to criminal conduct and categorically

13:49

excluded from First Amendment protects

13:51

him and shows Mcafee says

13:53

the indictment alleges that trunk

13:55

acted quote willfully and knowingly

13:57

to impact matters Us government.

14:00

Confirm. And allegations that

14:02

the defendant speech or conduct was

14:04

carried out with criminal intent is

14:06

something only a jury can resolve,

14:08

so Judge Mcafee rejects that talents.

14:10

While for now at least at

14:13

the end of his fourteen page

14:15

ordered, the judge says he's not

14:17

for closing the defenses ability to

14:19

raise and as applied challenge after

14:21

the establishment of a sexual record.

14:24

In other words, the defense could

14:26

raise it during or after the

14:28

trial after the admission of evidence

14:30

and testimony. And on

14:32

Monday the defense as judge magazine to

14:35

give them one more certificate of immediate

14:37

review like he did with a disqualification

14:39

challenge. That. Would let them once

14:41

again as the State Court of Appeals to

14:43

hear the First Amendment issue. No.

14:46

Word from the judge about that. yet? Still,

14:48

To come, Trump is scheduled to go on

14:50

trial in New York next week and Hush

14:52

Money case. Said that have an

14:55

assassin the trial here in Atlanta. We

14:57

the thoughts of our resident juri expert

14:59

about that. This it breaks down from

15:01

the Atlanta Journal Constitution. Ocean:

15:04

These tropical. Beach and

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air fresheners can make your car

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smell like paradise. A drive to

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the town of these silly get

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the pipeline have right now and

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bermuda he never happen if it

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had ever again he dental decay

15:37

find a. Happy

15:46

place! We.

15:51

Now turn to Denise Della Room. She's

15:53

been a jury and trial consultant for

15:55

more than three decades and breakdown listeners.

15:57

You know her well. She's been involved

15:59

in. I'm of the most high profile

16:01

cases in Us history. They. Include those

16:04

against you know: Bomber Ted Kaczynski,

16:06

Nfl Star Ray Lewis Centennial Olympic

16:08

Park Bomber Eric Robert Rudolph and

16:10

Susan Smith the South Carolina woman

16:13

convicted of killing her two young

16:15

sons by drowning them in a

16:17

lake. Next week Trump

16:20

will become the first President or

16:22

Ex President to stand trial and

16:24

a criminal court of law. A

16:26

Hush Money cases being prosecuted by

16:28

Manhattan District attorney Als and Brad

16:30

and jury selection is set to

16:32

begin on Monday. The trial as

16:34

expected to last two months he

16:36

could include since the laces testimony

16:38

about Trump's alleged trysts with a

16:40

former porn star and a former

16:42

Playboy Magazine playmate of the year.

16:45

Trump. Thesis: Thirty Four felony counts

16:47

of falsifying business records. And.

16:49

They all relate to Trump's road

16:51

in an alleged hush money scheme

16:53

to pay off porn star story

16:55

Daniels before the Twenty Sixteen Presidential

16:57

election, and there is expected to

17:00

be testimony about other alleged pay

17:02

offs, one to a Trump Tower

17:04

doorman, another to playmate Turn Mcdougall.

17:06

If convicted, Trump faces a maximum

17:08

sentence of four years in prison

17:10

for each count, according to the

17:12

New York Times, but the trial

17:14

judge the no nonsense one bucks

17:16

on could give Trump a far

17:18

more lenient sentence, including. Probation. With.

17:21

That on near her eyes and we thought

17:23

we'd are still a rule See thinks any

17:25

of the possible outcomes of the has money

17:27

tro could have an influence on the election

17:29

interference case here. So. I'll

17:31

say of the three scenarios, whether it

17:34

be an acquittal, a mistrial, or a

17:36

guilty verdict. I think

17:38

the first to an acquittal or

17:40

a mistrial. Would. Have

17:42

probably minimal asset. Based.

17:45

On the amount of time between

17:47

whenever that verdict or of that

17:49

would be and whenever the Georgia

17:51

case or cancer trial and all

17:53

the intervening. Advance. If

17:56

there's a conviction, Heaven.

17:59

Only knows. Because of

18:01

all the events that might follow

18:03

that conviction, right? There are so

18:05

many different scenarios there. Would.

18:08

Former President Trump be sentenced to

18:10

do time. Would. People

18:12

protest that decision. Would

18:14

we have another? You.

18:16

Know major events add or

18:18

major events based on that.

18:21

So I do think that

18:23

a conviction. Could. Have

18:25

a more profound effect on

18:27

jurors for any subsequent case

18:29

will encounter Any others are

18:31

because we a hardship rejects

18:33

the events that would follow

18:36

that. That would

18:38

affect jurors. Besides. Is

18:40

just as knowledge that he's been

18:42

convicted of a felony. And.

18:44

Another case. And

18:47

of course when she says mr

18:49

she's referring to a hung jury,

18:51

Della Rule also says this. At

18:54

so I think aside from

18:56

the unpredictability of what might

18:58

follow a guilty verdict, we

19:01

can sort of. Forget.

19:03

What the effect of just knowing a

19:06

defendant? In any case, Has been found

19:08

guilty of another crime. Would do

19:10

and that. I think it might sort

19:12

of solidify people who are are already

19:15

thinking. This is a bad

19:17

dude. see other people thought he

19:19

was too bright. As for those

19:21

who are as. Arden

19:23

Trump supporters who thinks that

19:25

he's being persecuted on they're

19:27

everywhere he can possibly be.

19:30

It might make them more

19:32

determined. To try to get on

19:34

a jury to see that this didn't happen again. I

19:37

could see either of those scenarios.

19:40

Bill Rule also has this take on

19:42

the possible scenarios. In

19:44

all of those, Jesus for talking

19:46

about people being human beings with

19:48

biases. That they're supposed to

19:50

set aside if or or less afford

19:52

know they can't. When. They

19:54

come into a jury room. But

19:57

I don't think that would be. As.

20:00

Deeply felt. As

20:02

the passion that might be a

20:05

was that it? If there is

20:07

a conviction, that's where the real

20:09

unpredictability com san to send American

20:12

history. You know if we ever

20:14

had a past president convicted of

20:17

a felony or a presidential candidate

20:19

predicted ever convicted of a felony.

20:22

Six months before election.

20:25

So. You know that that's gotta

20:27

be something none of us have ever

20:29

experienced. And palin the heck, could we

20:32

possibly forget how that would affect this

20:34

case and Georgia or any of the

20:36

other cases. Involving. The

20:38

former president. Who. Knows we just don't

20:40

know what the fall out of that are

20:43

the consequences of that conviction. Might.

20:45

Be. Finally, We

20:47

ask Gallery if she thought the

20:49

recent publicity about Funny Willis's romantic

20:51

relationship with former Special Prosecutor nice

20:53

and Weighed could have an effect

20:55

on a potential jury and Fulton

20:57

County. That is whenever

20:59

the case was to trial. So.

21:02

The effect of what's happened

21:04

at most recently with the

21:07

District Attorney. And.

21:09

And those events I think again,

21:11

it's going to be more of

21:13

an issue of how much time

21:16

lapses between. These events.

21:19

And whenever the trial would take place

21:21

and Fulton County, it seems less and

21:23

less likely that it would actually President

21:26

Trump. Anyway, Would actually

21:28

go to trial before the election,

21:30

so there are likely to be

21:32

so many intervening events. That.

21:36

I. Think it could possibly have very

21:38

little effect. On the

21:40

trial. But but we

21:43

don't know again, what's gonna

21:45

continue to happen with ethics

21:47

hearings and other related proceedings

21:49

that are supposed to happen

21:51

about. The things we've been

21:53

dealing with and the next and the

21:55

past few months so if those those

21:58

flames could continue to be thing. The

22:00

and. And. Which case it would

22:02

seem more current. So.

22:04

That's it for this episode. Will be

22:06

back soon! We are eagerly awaiting the

22:08

decision from the Georgia Court of Appeals.

22:11

As always thanks so very much

22:14

for listening. Breakdowns: Producer is Alexandra

22:16

as as well thanks to our

22:18

presentation specialist Keep Corson. Our colleagues

22:20

them are Hallinan and seen that

22:23

for. Deputy Managing Editor

22:25

Jennifer Bread. President and Publisher

22:27

and Remorse in the agency's under

22:29

and she's leave our Chapman. You

22:31

can follow our daily coverage on

22:34

her website adc.com and if you

22:36

really want to support local journalism,

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please subscribe to the A Jc.

22:40

Be safe and take care of.

22:42

until next time I'm boring. I'm

22:44

David Richards. And I'm Shannon

22:47

Mccaffrey has his breakdown on

22:49

the Atlanta Journal Constitution. Our

22:55

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