President Trump, and he waves his presence. I'm putting on Craig Gillen and the leg for
David Shafer and Mr. Shafer wins his presence. All right. Thank you, Mr. Gilland. So we had a follow -up from our December hearing
on focusing on the First Amendment grounds. As I took it, there was the focus of that
was more kind of on the maybe perhaps the procedural posture of what were how the analysis
should be applied. But if you want to get back into the merits
a little bit, you can feel free, Mr. Seyd
ow. But the floor is yours. Your Honor, may I remain seated and speak
into the mic? That's fine. Thank you. I think the first thing the court has to address
is whether or not a First Amendment constitutional as applied challenge is ripe for pretrial
consideration. Being candid with the court, if the court
says it's not ripe, then making the rest of the argument is probably not the right time. On the other hand, we have already argued
under Hall, and there's been other cases cited, that as long a
s we agree to, for purposes
of motion, the facts, not other allegations, but the facts, it is ripe. So I almost posit back to the court whether
or not we're in that posture. And we can do a little quick ping -pong here
if we need to, just so we know what the guardrails are. So I take a closer look at Hall, and I think
there's a follow -up case. I think it was Boyer, maybe Bayer. I forget what it was called. And certainly, they're going right at it as
an as -applied challenge. There's a little la
nguage there I want to
gel to give me your take on where I think the quote was. It's, well -established the vagueness challenges
to statutes which do not involve the First Amendment freedoms must be examined in the
light of the facts at hand. And so if you take the inverse of that, it
almost makes it sound like you should not be considering First Amendment challenges
as -applied. So I'm curious your take on that. But setting that aside, I mean, it certainly
seems in other jurisdictions as -appli
ed First Amendment challenges happen all the time. And so it could just be that we haven't actually
had the opportunity here in Georgia to address that on the merits. I don't know. But what also seemed clear, even reading Hall's,
that if we're in making an as -applied challenge, we're within the confines of the indictment. Because unlike Hall, the state hasn't said,
here are some additional facts that we're willing to stipulate to or concede to or anything
like that. Any and all of that, any rea
ctions. I understand how the court could look at the
inverse, but I think as written with all the justices agreeing that it is a first amendment
challenge would be right, constitutional challenge in the first amendment grounds, as long as
we accept all the well -pleaded factual allegations in the indictment and don't go beyond those. Now, as the court has indicated, the state
at this point has not set forth or stipulated to any other facts, although I think some
of them, for example, the fact of
how a letter gets to the Secretary of State or a telephone
call that is an issue, I think those things are clear throughout the record in this case,
but I'm not sure that they're necessary for the court to make an as -applied challenge. And as such, I think we could be limited to
the well -pleaded facts both in the RICO count count one as well as the other counts in the
indictment. Well, let's just start there. Mr. Wegford, any reactions kind of to some
of those things that brought up in Mr. Sa
ndow's response? We'll annoy the court if I actually come to
you. You can stay wherever you'd like. I think we've got to start with Hall. Your Honor, I'm glad you pointed to that language
because that was going to be the first thing I wanted to address today. Hall descends from a case called National
Dairy, which the language in Hall says in cases like this we're confined, we look at
the charge conduct, that's what we look to, and Hall of course was, they looked outside
of the charging instrumen
t to these other facts. So it seems like that's not going to be an
issue here because the state's not saying here's our entire theory of the case. So what stops us from doing an as -applied
first -minute challenge just based on the indictment itself? That's a limited one and you kind of have
a leg up since you get to put whatever you want in the indictment generally. Well, and that's kind of the thing, is that
when you look at the post -hearing brief from the defendant, and you actually look at
footnote
two, he's not actually asking the court to look at the well -pleading allegations in
the indictment, he's actually asking the court to read out certain words, all of which have
to do with intent. So footnote two on page two, he says, if it
says something's unlawfully or knowingly or willfully done, that's not a factual allegation
the court should consider. So the suggestion seems to be, oh, let's look
to Hall. Hall says we can play kind of fast and loose
with what the facts are, and in
this case what we want the court to do is read out certain
language from the indictment, actually not considerate. Let's just say we don't get to that further
step and we are just getting over that threshold even if there was no footnote 2. Any position at this point on can we make
an as applied First Amendment analysis of this? So it's true in federal courts. It's kind of all over the place. Some courts explicitly stay away from it,
and other courts go into it. We know that in this defendant's
case in DC,
actually Judge Chutkin explicitly went forward and made an analysis based on the allegations
in the indictment there. But not every court does. And some federal courts stay away from it
for a very specific reason, which is that there are still factual allegations which
have to be settled by a fact minder for a jury. And the reason for that is because it's As I look at all the cases that you found,
ones that didn't do it, I know generally they're going to say we don't have the record,
we
don't have the facts, but were there any that explicitly said, even though I could just
look solely at the indictment, I'm still not going to do an as -applied challenge. Well, I think that's how we get to a case
here in Georgia, and it's a case you're on our side of back in October when you explicitly
rule out, we're not going to get into this spectrum. The 11th century. That was a good case though, wasn't it? You're talking about- I'm talking about the
major case. as a Georgia case. The ma
jor case is where they say, okay, this
is a pretrial as applied First Amendment challenge, but essentially what this boils down to is
an argument about intent. That's what the defendant's really talking
about. And when you look at what the defendant wants
to argue about here today, it's just saying, well, I was talking, I was just a guy saying
things. I was just advocating. I was just speaking my mind. And so all of this is protected and therefore
the entire thing has to go away. your your stron
g argument strongest argument
on if we're in the analysis of the as applied challenge I'm still just trying to get over
and really understand the procedural element of it Well, and that's what Major says, is that
because that intent question has yet to be answered and the jury is the entity that answers
that question, it's premature to consider this. You can't say that the First Amendment has
been applied or that the as -applied challenge can succeed at this stage because there's
still questions
that have to be answered. I think it was like an over -breath on touristic
threats, right? It begins with over breath, but then it moves
into an as applied challenge. That's the last part. Did they actually say premature or did they
just say denied? They cannot say that it's unconstitutional
under the First Amendment as applied to the defendant in that scenario because there are
still intent questions. Does that actually maybe suggest, then, that
they did do an as -apply challenge? It's just ve
ry hard for a defendant to win
that, because all you have is the indictment. That is a way that you could interpret it. It would suggest that an as applied challenge
cannot succeed under the First Amendment because speech integral with criminal conduct is not
protected. A well -pleaded indictment is going to demonstrate
that speech that is fled as part of a criminal charge is integral to criminal conduct. And so there's nothing to decide if you're
looking in your cabin by the indictment. So we s
ort of have two routes here. Neither of them result in the grant of this
motion. One says, the court says, this is premature. There's questions that have to be answered. Any First Amendment challenge has to happen
after there's a factual record to look to. And the other says, okay, I can get to this
today. It's not that I can't. I can, but there's nowhere to go because all
of the speech is pled as integral to criminal conduct, and therefore it's not protected
by the First Amendment. You could en
vision an indictment, I don't
remember if Alvarez was a post -trial or pre -trial thing, but you could envision an indictment
where perhaps they drafted it to solely target speech because of its falsity or something
like that. So maybe there's a use for an as applied challenge
in that kind of a situation. That's a fair point, Your Honor. It's just not the situation here. And it's not going to be the situation in
almost any case. That was a special case where, of course,
you have a very unique st
atute that was punishing. But that was really a facial challenge, too,
because it was saying, like, this is just punishing falsity for falsity's own sake. None of the charges in this case are about
that. They are about falsity employed as part of,
or statements employed as part of a pattern of criminal conduct in numerous ways. So there's nowhere to go. And so I think it requires dismissal or denial
at this stage, because you either can't reach it because there's facts that have to be establishe
d,
or the indictment establishes that none of the speech is protected by the First Amendment. And the inquiry immediately ends. All right. All right, so back to you, Mr. Seydow, let's
move forward with the idea that we're making an as -applied challenge so we can find the
indictment. This isn't a facial challenge. You're not saying any of these statutes are
on this face unconstitutional. And your argument is that this is core political
speech. So some crimes can be achieved solely through
speech
, though. Terroristic threats, you know, solicitation. Why is that not what's happening here, as
alleged? Well, I think it requires kind of a detailed
analysis, so if I may. Sure. All right, so the first thing we have to decide
is whether or not, and we're talking about President Trump, we're not talking about the
actions of others. We have to look and see whether or not that
which has been alleged is facts, is in fact poor political speech, political discourse,
protective speech, and it's seen
it. I don't think there's any question that statements,
comments, speech, expressive conduct that deals with campaigning or elections has always
been found to be at the zenith of protected speech. What do we have here? We have election speech. So one must determine immediately whether
that constitutes poor political speech, and I suggest that it does. Now, does that make a difference ultimately? Yes, because the more core speech, the more
it is protected, the less the government should be involv
ed in restricting it. I don't think there's any real doubt about
that. So then the question becomes, is the mere
fact that the state here represents that it is false or fraudulent under the statute,
is that enough? Now, one I just heard, I think the state's
position would be yes. All we have to do is say it's false, it's
integral to criminal conduct, it's fraud, and therefore it can't be unconstitutional
as applied. I don't believe that that's what the law says. I think what the law really looks
at is as
to each individual application of a statute, whether or not the falsity in and of itself
alone is sufficient. And I think the case law indicates that that's
not so, particularly, and I don't need to go back through and detail everything that
Alvarez said, but I think Alvarez is important because even when you talk in terms of, and
I'll start with, we're looking at the majority, well, actually, I guess it would be the plurality
opinion that by Judge Kennedy, but for purposes of interest
to us, the Chief Justice and Justice
Sotomayor agree. So now we're talking about two people still
on the court. And I'm looking specifically at page 720,
three, in which the court goes on to say, where the court to hold that the interest
in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence
that the speech would be used to gain a material advantage, it would give government a broad
sensorial power, unprecedented in this court's cases or in our constitutional
tradition. So that's the beginning part of plurality,
saying the way to attack false speech or false political speech or core speech is with truth,
which is precisely what was going on. We're talking about this time period without
getting outside the indictment. You're talking about, at the same time the
allegations are being made, factual allegations in the indictment, you have others that are
fighting that off. Government's position would be with truth,
state's position with truth. Moving beyo
nd Alvarez, that part of it, you
have Justice Kagan with Justice Breyer. And here I think gets to the crux of where
we are. And this is the concurring opinion. It goes through a litany of false statement
cases in which the government's position in Alvarez is being false in and of itself is
enough. That is, once you determine it's false, we're
done. That's not what the concurrence says, and
that's not what the dissent says. The concurrence says, basically, that these
judicial statements cannot be
read to mean no protection at all false factual statements
can serve useful human objectives for example in social context where they may prevent embarrassment
da da da da da da in public context where they may stop or panic in the face of danger
and even in technical philosophical and scientific context where as Socrates' method suggests
examination of a false statement even if made deliberately to mislead can promote a form
of thought that ultimately helps realize the truth and then it goes o
n and says even a
false statement may be deemed to make a valuable contribution to public debate since it brings
about the clear perception and the livelier impression of truth produced by its collision
with error so this is the proposition that it's not the falsity alone that controls it's
the context in which the speech is made and if it is deemed false and for purposes of
the indictment we have to assume that it is false because that's what the facts have been
alleged that doesn't mean it's t
he end of the analysis Why do we not also have to assume since it's
an allegation? I think you say in your brief that it's unlawful
willful and knowingly false Because at least our position, President Trump's
position, is those are words are not words of fact. Those are words of legal connotation. And while they have meaning, that would allow,
for example, let's go to Alvarez and the Stolen Bower Act. Just because they alleged that it was unlawful
didn't mean it wins. That is, it doesn't mean th
at the government
wins. But that's because they decided that wasn't
a crime at all. I mean, that was a facial challenge where
they said, this statute, even if you violated it, violates the First Amendment. You've said that the RICO statute, you can
violate it and not, you know, it's not a, right? So we make, we put legal conclusions and indictments
all the time. I think that's gonna be part of Mr. Shaper's
argument in just a minute. I mean, you said a moment ago, just because
the state pleads it
, you don't think that's enough and an as applied challenge. And I'm trying to figure out. as to statements such as legal conclusions
are unlawful and so forth. Now, if there had been, I guess if the allegations
had been broader, maybe we wouldn't be at that crossroads. But those aren't facts. The facts, as I've outlined or we've outlined
in our brief, you take the overt acts, you look at those overt acts, and then those,
at the same time that they look at the substantive offenses or conspiracy
offenses in the rest
of the body of the indictment. Words like unlawful don't change that. At least that's our position. So now we're talking in terms, going back
to Alvarez and the concurring opinion, you're talking in terms of falsity alone is not enough. There are situations, contexts which override
just the falsity alone. And that, again, the political discourse,
the political speech, the more significant it is to certain issues, clearly, being president
of the United States at the time, dea
ling with elections and campaigning, calling into
question whether what had occurred, at least in the election of 2020 for president, that's
the height of political speech. And then you go even to the dissent, which
I think is as important, because now you have Alito and Thomas and members of the current
court. And I go to that, what I believe starts at
page 751, and it says, even where there is wide scholarly, this is 752, even where there
is a wide scholarly consensus concerning a particular m
atter, the truth is served by
allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out
to be mistaken. And in these contexts, even a false statement
may be deemed to make a valuable contribution to public debate since it brings about the
clear perception and livelier impression of truth produced by its collision with their
citing US Supreme Court. That's the essence of what we have right here. That's the facts that have been alleged. Essentia
lly, the state's position is because,
as alleged, what President Trump said speech wise, or expressed either through his speech
or conduct, which is still freedom of expression, because that's false in the eyes of the state. It's lost all protection to the First Amendment. And the concurring opinion and the saying
opinion in Alvarez suggests just the opposite. If anything, under the circumstances, it needs
more protection, not less protection. So keeping that in mind, let's move to not
RICO. Put
RICO aside for a minute. Let's move instead to the conspiracy counts,
which are counts 9 -11, 13 -15, 17 -19. Basically, what the state's position is on
that, because it took this position previously and it's filing on September 27, 2023, in
response to that which was filed by Tesbro. And I'm aware, of course, of the court's order
that not with Tesbro, and it didn't deal with the as applied. So I'm dealing... Well, and more so in that one, as I go back
and look at it, there was a much more conc
erted effort to bring in facts outside of the indictment. They started talking about, well, there was
a transcript at the meeting, there was this. So it didn't really seem to be a true as -applied
challenge. But as the court noted in its order, at that
point, it didn't determine that it was ripe for a pretrial challenge. So I'm taking what Chesbrough, what the state
said as it applies now, because it says in that brief that it was both as to facial and
as applied challenges. Essentially, what it
says is as to those counts,
9, 11, 13, 15, 17, 19, as to 9, 11, and 17, the mere fact that it alleges a fraud is enough. That is, that's what's on page 5 and page
6. Since each of those statutes prohibit conduct
involving fraud, we don't go any further. And I'm suggesting that's wrong, that you
must go further. You must look at the speech itself, the expressive
conduct itself, in connection with those specific statutes. That's what the as applied is, the fact that
it's a fraudulent statute. Now
you want to look and see why, under the
circumstances here, the language speech of the president falls within that. And if you look at it in that sense, the mere
fact that it's false is all that they have. They don't, there's not a finding that the
speech itself, beyond the speech itself, is fraudulent. What the state wants to do is say, we have
a goal. We have an objective here that we have put
forward. Steal the election in an unlawful fashion. I say change that for a second to legitimate
con
cern about the validity of the election. If that was the way you focused on it, which
is a way to do it as applied, even with the facts, would what President Trump said on
those counts be a protected speech? And the answer is it has to be, because the
only thing that makes it fraudulent is the state saying, it's false. Take every one of those and say, OK, it's
not false. It's protected. The only reason it becomes unprotected, in
the state's opinion, is because they call it false. And that's what
Alvarez doesn't allow. In and of itself, it cannot be simply the
content -based. It has to be contextual. And the contextual here is a political core
value being addressed, elections and campaigning. And that holds true for all of those that
deal with the conspiracy. And then you deal with counts 29 and 39, which
is the false statements charges. Now, it is clear that the Supreme Court would
find that a statement made under 1001, 18 U .S .C. 1001, would constitute the appropriate, let's
say, abr
idgment or non -protected conduct or speech. But Georgia's statute's a little different
here, because we don't have a materiality element. It's the mere fact of falsity, which violates,
according to Georgia law, counts 29 and 39. You don't have to do anything else but make
a false statement, even if it is political discourse, even if it is in the heightened
context that I've suggested. If it's false, it's a violation of the law. And I'm saying as applied to political speech,
that can't be consti
tutional as applied. Remember, no materiality, simply the fact
that he said it. So essentially, what the state's position
on that would be, it didn't have to be sent to anyone of consequence in the state agency. It just had to be said. Indeed, if you look at, and the most probably
best example is count 39, that's a letter written after the election in September of
2021 from President Trump to Secretary of State in which it has, according to that one
statement, and that constitutes, according to
the state, falsity, but it's clearly political
speech. And it's clearly being related to the activities
and the matters of election and campaign, even after the fact. It's still related just to that. So looking at 29 and 39, I think you have
a situation in which the falsity alone is all they have as applied here to political
speech. is unconstitutional as applied under the first
amendment. And then finally you have count 27. Quick question on that. I hadn't located one. Had you found anyone ever
attempted a facial
challenge on 16 -10 -20? Yeah, in fact, I don't remember the name of
the case, but it has been upheld, even though there was references to the fact that maybe
materiality should be part of it. That's got to do with that. Fairly. case that's right that's right Yes, facially, yes. But Haley, of course, didn't go to the extent
of trying to determine as applied in a particular context. And it's, again, I don't wish to repeat what
I just said, but here we're talking about the heig
htened value of core political speech. And then with 27, we're talking about the
filing of a false document. Again, the only thing there that involves
President Trump is an attestation on the complaint. Now, all it refers to on the indictment is
complaint. But again, we're talking about the act, the
falsity or the filing of false document is the falsity in the document itself. And I'm suggesting under the circumstances
that in that alone wouldn't violate that statute as applied. So regardless of
the facial challenges, the
question becomes here, is the mere fact that the state says fraud or false statement enough
to get by an as applied challenge? And our suggestion is it is not. Now let's go to Rico. And I think Rico is more difficult, to be
honest with you, because we're talking about a much broader statute. At the same time, when you look at the allegations
against President Trump, all of the allegations, all of the allegations involved, expressive
conduct or speech, we have false st
atements alleged in overt acts. And again, all of which are political core
value, political discourse, you have false statements in overt acts, 1, 5, 7, 8, 17,
93, 97, 108, 113, 133, 135, and 157. The only allegations there are falsity. There's no allegation beyond the fact that
those statements are made. And I'm suggesting that heightened political
speech has to be looked at differently. When it comes to tweets, which is at least
the way the state sets it forth, is also political speech. And he
re certainly by the then President of
the United States, you have tweets in 22, 26, 27, 32, 75, 100, 101, 106, 114, 128, 138,
and 139. So the majority of the overt acts involve
false statements or tweets, which are clearly political speech. How best to deal with that under the circumstances? To prosecute those under a broad RICO charge,
supposedly with contesting an election by, I guess, illegitimate speech or expressive
conduct, or is the way that we are set up as a country, is that the First A
mendment
plays through this by others, by those that are complaining that it's false, proving it's
false, bringing forth the truth. That's the essence of what Alvarez has said. That's the essence of what a case called Brown
versus Hartlich, which is cited in Alvarez. It's 456 U .S. 45 and 61, a 1982 decision. All of those speak in terms of when you're
dealing with that speech, that political speech. You're best to deal with it through the pushing
forth a counter view of truth, not prosecuting th
e speech maker or the person that is articulating
his political views. Here we've done just the opposite. We've decided that because those views were
unpopular and in states opinion false, we must prosecute them to stop them from happening
again, which is, again, the essence of why it's unconstitutional as applied, because
that's not what the law says. Finally, the rest of the overt acts, either
telephone calls or meetings or requests, no false statements. They're just acts, expressive acts. And
they're in there as well. Those are political acts. And for the court's benefit, because I know
there's a lot of overt acts, those are 9, 14, 19, 28, 30, 31, 40, 42, 43, 44, 90, 95,
112, what's in the old indictment is 123, paragraph number 2 is now I think is 125,
130, 131, 140, and 156. There is nothing alleged factually against
President Trump that is not political speech. What this court has to decide is, is the state's
position that fraud or false statements under these circumstances, whic
h I suggest really
is a loan, is that enough to get it by an as -applied challenge? Our position is it's not. Is there another way to look at this? They're going to argue at the same time that
it's integral to criminal conduct. But it's the speech that's being punished. That is the criminal conduct. If it's not the criminal conduct, there would
never be an indictment for the RICO against President Trump or any of these other counties. Take out the political speech, no criminal
charges. Political
speech, disagreed with, basis for
all charges. I think that is the best way for me to sum
up where our position is. far. Thank you, Mr. Sadeau. All right, Mr. Wayford or Mr. Floyd, if there
are any points that you wanted to address or respond to? Maybe I'll start you off with this. It certainly seems that the primary case driving
Mr. Sadeau's argument would be Alvarez, because
that's a fractured kind of plurality opinion. I'm wondering if you have any thoughts on
just how much that can drive th
is. I know the state, back in December, was also
citing Alvarez as a primary case. I wonder if that's even the best one for your
argument. I think to address the first, I think, elephant
in this courtroom is that a judge shotgun in DC has evaluated all of these arguments
under Supreme Court precedent already. So I would refer your honor to the court's
analysis because I'm hardly going to improve upon the findings of the federal judge. However, speaking specifically to Alvarez,
that it is a plura
lity opinion with the several different concurring, several different opinions
written by other justices. What they all agree on, though, is that Alvarez
doesn't change the law that speech integral to criminal conduct is not protected under
the First Amendment and that that's not what Alvarez was about. It was about punishing falsity for its own
sake. So the question is, is that what the state
is doing here? And by fundamentally rewriting the indictment,
the defendant is suggesting today that th
at is somehow what the state is doing when actually
what the state is saying is that these statements made by the defendant were all employed as
part of criminal activity, various conspiracies, frauds, intentions with deceit and violations
of the law. It's not just that they were false. It's not that the defendant has been hauled
into a courtroom because the prosecution doesn't like what he said. He is free to say, to make statements and
to file lawsuits and to make other legitimate protests. Wh
at he is not allowed to do is employ his
speech and his expression and his statements as part of a criminal conspiracy to violate
Georgia's RICO statute, to impersonate public officers, to file false documents, and to
make false statements to the government. That's what he's alleged to do. He's not charged under 16 -10 -20 because
he told some lies, although it is very interesting to hear counsel for Mr. Trump tell us about
the usefulness of lies. He's not being prosecuted for lying. He's being
prosecuted for lying to the government,
an act which is illegal because it does harm it to the government. That's the reason that it's illegal. That's why it's different from the statute
evaluated in Alvarez. Same thing with filing a false document. It's not just that you've made a false statement. It's that you swore to it in a court document
and submitted it to the court. That does harm to the judicial system. That's obviously different from just falsity
being punished for its own sake. And th
at is what each and every charge in
the indictment demonstrates, is that these statements are part of criminal conduct that
is larger than just the false statement on its own. Especially with the RICO charge, where what
we see is that this is a criminal organization whose members and associates engaged in various
criminal activities, including but not limited to false statements and writings, impersonating
a public officer, forgery, filing false documents, influencing witnesses, computer theft,
computer
trespass, and on and on and on. But what the defendant is suggesting to your
honor is trying to get around to the fact that because it's almost saying that because
these statements are false, that these charges should be dismissed. It's like, well, you can't punish falsity
on its own, and yet each time you look at the charge, the government's saying, the state
is saying that he lied. So that must be the end of the inquiry. But that's not the end of the inquiry at all. That's not what th
e indictment says. It's not just that he lied over and over and
over again, as counsel for the defendant points out by listing all of the instances in the
indictment. It's that each of those was employed as part
of criminal activity with criminal intentions. And we finally get to a place where I knew
we would end up, which is saying, I believe your honor was requested to think about it
as not as lies, but as legitimate concern about election issues. Well, that sounds like a trial argument to
me.
But this is why I began by talking about intent
with your honor, because I knew we were going to end up in this exact place where he said,
sure, you can look at him as lies because they weren't true, or you could think this
is just well -intentioned concerns from a American citizen speaking his mind. And that, of course, would probably be a pretty
good argument to put before a jury. And I expect we will see it, but it's not
a basis for dismissing the indictment. The whole question of intent is
no doubt going
to be brought up. It can only be determined by a jury. But. what we have heard here today is an attempt
to rewrite the indictment to take out the parts that are inconvenient and always say
well it's all speech it's all talking and he was just a guy asking questions and not
someone who was part of an overarching criminal conspiracy trying to overturn election results
for an election he did not win by violating the reco statute by making false statements
to the government by filing
false documents by impersonating officers and doing a whole
host of other activity which is harmful in addition to the falsity of the statements
employed to make them happen so I think there's been a suggestion that your honor can sort
of reframe what you're looking at but Alvarez does nothing to shift the basis that the court
should stand upon when evaluating the indictment and that is to say is this is the speech being
punished solely because it's false solely because of its viewpoint or is it
speech that's
being demonstrated as integral to a pattern of criminal activity and finally the fact
that it speaks to political concerns or core political speech and this is something that
the court in D .C. thoroughly addressed does not change the fact
that it can be employed as part of criminal conduct it's a mere fact that you're talking
about issues of public concern or core political speech which may be completely fine and protected
in most contexts does not mean that you cannot be indicte
d if you use that kind of speech
to pursue illegal activities that's that's the whole nature of the question so it's very
circular and and I would direct your honor to page six to seven of of the post hearing
brief filed by defendant Trump which says the speech integral to criminal conduct exception
of the first amendment does not apply here because all the charge conduct constitutes
first amendment protected speech that is a very neat circle the first amendment protects
us because all the speec
h is protected by the first amendment and in the end no matter
how much we hear about the obviously the noble protections afforded by the first amendment
all of this is an effort to get your honor not to look at the basic fact that this speech
this expression all this activity is employed as part of a pattern of criminal conduct in
a host of ways and because your honor is bound by the indictment and has to look at the indictment
and can't look beyond it if we're going to get into this at this st
age then there's nowhere
to go as I said at the beginning because this is all alleged as part of a pattern of criminal
conduct and not protected by the first amendment any argument to the other otherwise is just
to try to pretend like that's not true Thank you, Mr. Waker. Thank you, Your Honor. May I add one point briefly? Sure. Thank you. Wait a second. We're being doubled up on here. I think you can handle it, Mr. Sadam. And I'm just going to be on one specific point,
not duplicate the argumen
t made before. I believe defendant Trump fundamentally misunderstands
the role of an overt act in a conspiracy case. As we've discussed many times previously,
this is a Rico conspiracy case. And so we heard Mr. Seydow discuss various
overt acts and say, well, but this is just a tweet. This is just a phone call. This is just acts. The unspoken, underlying, and incorrect premise
then is that every overt act must be a crime. As we've discussed a number of times and as
the state has set forth extens
ively in multiple briefs, that's not true. The purpose of an overt act is to show that
the conspiracy is in operation. It is not a separate crime. It doesn't have to satisfy the elements. It doesn't have to be pled with that level
of detail, as your honor acknowledged. And in order, I think that's all of two weeks
old. And so to say we can't mention this particular
act or this particular conduct because it's not a crime or it's protected by the First
Amendment, the answer to that is actually so
what? Because it could be legal conduct. It could be First Amendment protected conduct. That also shows there's a conspiracy in operation. And as long as it serves that purpose, it's
fine. And so overt acts should not be examined by
a standard that has no application to them. They are not separate freestanding offenses. And there is federal case law that maybe we
can cite it to you that has said an overt act can involve First Amendment activity. Its purpose is not to be something that is
separat
ely charged here, separately subject to a separate sentence. Its purpose is to show that there is a conspiracy
and it's in operation. Georgia requires to reco because one overt
act by any one defendant. So of course the reco would stand if anything,
any of the 161 overt acts alleged constituted an overt act. It would only take one. It doesn't take any by Mr. Trump. But the point is we have an abundance of them
by Mr. Trump and for purposes of the reco statute in the manner in which it functions,
it doesn't matter whether that's First Amendment conduct or not. I mean, we've, my colleague has fully explained
why much of this conduct is not shielded under any circumstance by the First Amendment. And I don't mean to contradict that in any
respect, but it's important not to lose sight of the function the overt act plays, the role
it plays in a conspiracy case here because it is not the role being suggested by defendant
Trump. All right, thank you, Mr. Floyd. All right, I'll give you a coupl
e of minutes. Final word. Thank you, sir. If I heard what Mr. Floyd just said, that
if everything President Trump said was assumed true and included in the RICO indictment,
and therefore now we're talking about true political speech, not alleged false, he could
still be prosecuted for the violation of RICO. after the overt acts as alleged let's say
even the overt acts ran afoul of the first amendment he's saying that wouldn't be fatal
to count one Because at that point, if they There could be so
me other thing they prove
that's not alleged as an overt act. That may, as I understand it, as I understood
it as well. But what I'm suggesting is, if all of the
overt acts are nothing more than core political speech or expressive conduct, and nothing
else is alleged which is not protected by the First Amendment, then you have an insufficient
basis for which he has been indicted, because he's being indicted for First Amendment speech
and not for unprotected speech. And therefore, the statement t
hat was made
about, if it were true, we could still use it as an overt act, suggests that they can
prosecute true speech, which is what we're trying to get to here. It's the nature of the speech, the political
speech, the heightened value of such, which gets this situation different than others,
and the fact that it comes from then president of the United States. Going back to what was said in addition by
the state, what the state claims as criminal here is lying to the government. That's what i
t said. That's the exact reason why, in several of
the Supreme Court cases, it's been found to be protected speech, because it deals with
the government and falsity in the sense of communication with or to the government is
best dealt with through true speech, not through prosecutions, because prosecutions chill speech. And when it comes to political core speech,
what you don't want is chilled. I use, fortunately, I have a co -counsel that's
able to pull things up and help me inform the court un
til the computer shuts down. And looking at what Haley says, just to give
you an idea of how the Georgia Supreme Court might look at this, there's a quote from Haley. And it says, while there is no constitutional
value in false statements of fact, such erroneous statements are nevertheless inevitable in
free debate. And punishment of error runs the risk of inducing
a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech
and press. Accordingly, the First Amendmen
t requires
that we protect some falsehood in order to protect speech that matters. And I think that's what we're talking about
here. To end this, and again, we're focusing on
President Trump's conduct at the time that he, in fact, is the head of the executive
branch. There is references to this in Brown v. Heartwood, and I cited that earlier. A well -publicized, yet bogus complaint on
Election Eve raises the concerns that you may have some impact that would affect an
election. But the preferred
First Amendment remedy of
more speech, not enforced silence, has special force. Underlying our dependence upon more speech
is the presupposition the right conclusions are more likely to be gathered out of a multitude
of tongues than through any kind of authoritative selection. To many, this is and always will be folly,
but we have staked upon it all. And for speech concerning public affairs is
more than self -expression. Expression, it is the essence of self -government,
and that comes from Garr
ison v. Louisiana, which is cited also in Alvarez. Bottom line here is this. But for protected First Amendment speech,
President Trump would not be charged in RICO or the other counts. Take out the protected speech, and you don't
have an underlying basis for which to charge him. And since that violates the Constitution as
applied to the charges here and his speech here and his position here, this is right
for a constitutional challenge. One step further. If it's not right now and we get into int
ent,
when does the court determine that? Do you determine that after we have a trial? I think it would be the directed verdict stage. Well, would it? That's the sufficiency of evidence. With all inferences, yeah, in favor of the
stage. That's a whole question. I mean, do we go through the whole trial? God forbid there should be a conviction. And then we go back to try and determine as
applied. I'm suggesting the reason it's right now,
and the reason why we don't even get to a trial, is because i
t's unconstitutional to
force and accuse, be it the president of the United States, former president, or anyone
else, to stand trial on protected speech. And I think that's what Alvarez and the progeny
previous to that and after say. All right, thank you, Mr. stayed out. All right, Mr. Gilligan, you need a minute
before we dive in or can we get started? All right, now we're ready to go. Okay, so just teeing this one up. I know there's a good bit of your motion that
goes back into a lot of ground
. I think we covered at the December hearing. Well, let me Start off with some good news for the court. I'm happy to hear it. Say the smile already on the court. court's face. The general and specific demurr, a great deal
of that does go into the areas of RICO that the court has not only ruled on but heard
other arguments. Well, I haven't ruled on it yet, but it was
just been talked about continuity. Well, I think there was a ruling in October
the 17th ruling that addresses a lot, some of the is
sues that were addressed. So, I'm not going to redo, re -plow that ground
that the court has heard, you know, aware of the government's position. I know that it probably ruined Mr. Floyd's
day by not allowing him to get up and go back over his RICO expertise. I'm not going to do that. What I'd like to do, though, today is to move
forward to some areas that I do think needs to be, and the question really when the court
said, do we want to have oral arguments today or not? And then the question wa
s, well, you know,
because on the RICO thing, I think I probably could have said, if it was just the RICO component,
I would have said, fine, let's just do it on the papers. You've got a lot of other candidates. Those are some other things that I wanted
to talk about and have the court focus on as it relates to some of the other aspects
of the special and general demurs, and to focus on that in this way. Number one, I want to talk a little bit about
some of the accounts and personings, public of
ficers. I want to talk about the forgery, the false
statements, briefly and talk about that, but also to raise this issue with the court. Now, we argued that in our pleadings, but
defendants still filed additional motions on these very issues and did a very, very
good job in a lot of his arguments. We know that the court granted the stay for
defendants still because he's of the state legislature, and thus had that not happened,
Mr. Beaver would be here with me talking about these issues. I think
that the still pleading addressed
a lot of the issues that were raised in the response by the state, and so with the forgiveness,
hopefully, of my dear friend, Mr. Beaver, I'm going to mention some of the things
that they mentioned, but I would hope on behalf of defendants still, the court may listen
to what I say, but also, prior to ruling on these particular issues, might afford defendants
still the opportunity to have his own oral argument day so that he could more fully address
these issues
, and I would appreciate that on his behalf. When we talk, let's get on to it. We're talking about impersonating a public
officer charge, and we talk about that. When we talked about that, we talked about
whether or not, you know, the charge impersonating a public officer charge, count eight. We say that subject to dismissal. You know, in that pertinent part, it says
on October the 14th, on or about December 2022, unlawfully, falsely held themselves
out as the duly elected and qualified presiden
tial electors from the state of Georgia public
officers with the intent to mislead. Now, what we did in our pleading is we said,
well, that is defective because under the statute, 2151, as public officer, there is
no reference there to presidential electors as being public officers, and therefore, that
should carry the day for us. The state's response says, well, not so fast,
Mr. Gillen. We've got cases here that talk about situations
in which 2151 doesn't carry the day. Well, not even cases, I
mean the statute itself. I mean, you're pulling that from the ethics
statute, so I'm not really sure why I didn't look at that. I mean, college officers all throughout the
code, and it's just kind of one of those hanging kind of question marks, I suppose. So what the state does, and I can see the
court's point, I'm not going to argue that. What I am going to say is that what they say,
they cite cases where there are individuals that are impersonating agents, police officers,
or agents for Metro
Atlanta human trafficking task force. Okay, that falls into that category. Trafficking in the task force or a federal
agent. Those are things that the state responds to. I think that in the still motion, it covers
some of the concerns the court may have regarding this issue of public officer and why we think
that we should prevail on this as well, again hoping Mr. Beaver has his day. Well do me a favor actually, I've kind of
put the still motions in a box and I haven't opened it yet. Make those
arguments for me. Well, I'm going to, but not as articially,
I'm sure, as Tom could do it, but I'll give you the flavor. The flavor of it is that in the still motion,
which we adopted after it was filed, it talks about how other case law in Georgia, when
it talks about, first of all, 1610 -23, doesn't define public officer. So we start from that, so we've got that out
there. It doesn't not define the public officer. But the still pleading does say that the issue
of who is and is not a public off
icer is addressed in other contexts in Georgia law, usually
in the, quote, merito proceedings where somebody is trying to find out the legitimacy of somebody
having or holding a particular office. In that context, there are cases citing in
the still pleading that address this very matter. They cite Brown v. Scott as a case in which
the Brown v. Scott case, whether or not an individual has designation or title given
to him by law or exercises functions concerning the public assigned to him by the
law, they
cite Brown. The inquiry doesn't really end there. The George Supreme Court noted the term public
officer involves the idea of tenure, duration, fees, emoluments, and powers, as well as that
of duty. And so that's McDuffie v. Ferguson, and that has to do really with grand
jurors. So when someone says, well, it is a grand
juror, a public officer, and the court breaks down an analysis talking about that saying,
not really, because grand jurors may only meet for a few days. They're not es
sentially, they're not there
for some sort of duration or tenure. They don't take the same oath of office as
prescribed for public officers, and they lack the element of tenure and duration which must
exist to qualify as a public officer. So how would that apply again to like a purely
fictional task force? Well, I mean, let's forget the purely fictional
task force. It would, let's have it, that case law from
our Supreme Court, how it applies to our case, and how it applies to our cases. The pres
idential electors are not people who
have a lengthy tenure duration, which it must exist. Frankly, their job is to meet for one day. No, no, I see your framework there, but if
the framework is actually in this, whereas the Metro Atlanta Human Trafficking Course,
it doesn't even exist. Well, it doesn't. But someone is pretending to be... Someone is pretending to be an agent. Maybe they're part time. It's just it seems like I will you know I
mean I did agree to disagree here because I think
that w
hen someone says, well, I'm here in my badge, I'm an agent of enforcement of the
law for, and then names a particular entity that doesn't even exist. They're pretending to be a peace officer. They're pretending to be an agent for the
government, which by the very nature of that job would have tenure, would have responsibilities,
would fall into the definition that the Supreme Court has given in Brown v. Scott and McDuffie v. Pearson as to what a
public officer should be. And so in that context,
we have, you know,
we have, same thing actually, it popped up again on the issue of, in Morris C. Peters,
another case, Supreme Court case, dealing with whether or not someone is a public officer,
that had to do with a, quote, weren't against the chairman of the Georgia Democratic Party
and whether or not he would fall in as a public officer. Bottom lining it, like in that case, and which
found that he was not, like grand jurors and public official, party officials, presidential
electors are not
public officials under Georgia law, especially for purposes of 1610 -23. Their jobs, services are temporary, like the
grand juries. Their position really only arises once every
four years. It's limited to a single meeting on a single
day. So it lacks that element of tenure and duration
which must exist. So it's kind of like back to the political
case, Morris C. Peters case, which dealt with the state party political chairman, nominated
in accordance with the rules of their party, but just becau
se the fact that they were nominated
by the rules of their party doesn't make them a public official. So and like grand jurors, presidential electors
don't receive, they're not receiving their salaries for their service. So all of that, your honor, tells us that
this particular count is flawed for the very purpose of these electors cannot be under
Georgia law public officers. And so, you know, although we agree with the
court's initial position regarding the limitation on the definition of publi
c officer in our
pleading, good old Tom Beaver and the still pleading has come forward to rescue us on
that point. And so if you look at what they did, and hopefully
Tom will do a better job of articulating those points, in their pleading they talk about
specifically some other cases that get into either in Texas and I think Utah as well,
that deal more specifically with this. But for the purposes of argument today, I
think that we've sort of got the drift on what I think is happening on the imp
ersonation
of public officers. They're not public officers and clearly under
the direction we believe of our Supreme Court, they could not be so judged. Now again, I'm not going to spend a whole
lot of time up here with the court, but I do want to touch on a few of the other components
of our pleading, the forgery counts. Now, you know, we indicated in those counts
10 and 16 are sufficient to dismissal, you know, writing a check in a fictitious name
or manner that the writing is made or altered
reports have been made by another person,
that's the definition of 1610. What we have here in this indictment is we
have an assertion that a writing or other than a check in a manner that the writing
is made reports to be made by authority of the duly elected and qualified presidential
electors from the state of Georgia who did not give such authority. that's what they allege. Let's break that down as to why. And the state's response to us saying, would
they want to focus on the on the phrase un
der the authority. And what we have here is the concept of what
is what is the authority who is who is this on October the 14th, who was the dually, excuse
me, the duly elected and qualified presidential elector from the state of Georgia, who did
not give such authority on December the 14th 2020. Now, the answer to that is that as it is a
matter of law, simply as a matter of law, and we're now we're going back, your honor
to some of the arguments we've made with the court earlier on the issue of
supremacy, clause
worthy of at least highlighting some of those points to the court for the purpose of making
our point here. And that is this that, you know, be under
the law, the federal law, as it existed in 2020, when the state of Georgia failed, failed
to comply with federal law about having an adjudication of any pending controversy or
litigation. And as we know, in the public record in this
court house was the pending and unresolved Trump and Schaefer litigation on the election. Now beca
use that lawsuit was not adjudicated,
pursuant to federal law, then the state of Georgia lost its ability on after safe harbor
day, lost its ability to then name who the the electors should be. And as we discussed earlier, and I'll shorten
the argument before the say a purpose of the record, I'll just make the following points. Once that happens, and it's very, very clear
from from from federal law, and from the the language from Bush v. Gore, the state any sensing opinion of Bush
v. Gore. Yeah,
true. But but as it points there, it's like, it's
not that they see it is not even a serious issue. Because the clear reading of the statute would
say, if you don't get it done by safe harbor day, then you have lost out. And once that happens, the power then shifts
back to the Congress. So as of by law, we think not not a factual
issue. By law on December the 14th, 2020, there were
no there were no duly elected and qualified presidential electors from the state of Georgia,
because of that failu
re. And so Understand your point, and I don't want to
get too deep into it, but since we're in demur world here, wouldn't your allegation of whether
a lawsuit was filed, whether it was pending, none of that's an indictment. Doesn't that transform this into a speaking
demur? Well, we don't think so, and the reason why
we don't is the last time I think we quoted the court that the court could take a notice
of the pleadings within the court system. And I believe that while we are articulated
there,
and I don't think we had an objection from the state, could be wrong, but my recollection
is we didn't, that we then, we then worked from the framework of yes, in this courthouse,
there was a filing, a pleading, that we're not going, this isn't a speaking to Murr,
it's a part of the court record, part of the court record says there was a lawsuit that
was not adjudicated by, say, Farber Day. So we don't have to go outside the indictment,
it's not a speaking to Murr. And because of that, by apply
ing the law,
these forgery counts, 10 and 16, in our view must go. Now, the other counts that I would like to,
or the other matter I'd like to discuss is the false statement component. And on the false statement counts of 12, 18
and 40 dealing with false statement. Now, here, the issue here dealing with the
false statement, for example, is when they're asserting that we, that there was a document
within, that was sent within the jurisdiction of the officer, the Georgia Secretary of State
and the
officer of the governor of Georgia departments and agencies of the government. Now, we've got two arguments to that. Number one, and again, back to Haley, Haley
talks about this issue, and when Haley talks about it, the key thing is whether or not
there was agency with the key, with authority to act on it. Now, there are two flaws, the fatal flaws
the state has as it relates to this issue concerning Haley v. State and on the issue
concerning the safe harbor. Number one, as we mentioned, at that
time,
there was nothing for the State of Georgia to act upon. They merely received the information. It was merely a sort of a ministerial act,
if you would. But even more fatal to their argument is the
second argument that I made a moment ago, which I won't repeat other than referencing
it, the failure, the failure to act by safe harbor date renders any activity on behalf
of the State of Georgia, be it the governor or the Secretary of State, renders that gone. Because now it's all gone back up
to Washington,
to Congress, to deal with that. And the government and the State can't now
say, or at any time say, well, we're saying that the Democratic nominees or the Democratic
representatives for the electors, they ultimately became the duly elected, you don't do that,
you don't retros, parachute back into what happened on December the 14th. The world, as we know it, on December the
14th, they were neither Democrat or Republicans that were duly elected under federal law. And so, given that,
we believe that the false
statement counts should go. Thank you, Your Honor. OK, any thoughts from the state reaction? Mr. Wooten, this one's yours. Yes, Judge. Why don't we pick it up on that last point,
because I know we've died into some of this, not so much the safe harbor aspect of it in
that argument, but the idea that the governor's office and the secretary of state's office
just didn't have jurisdiction. I know you've said that that's an issue of
fact that needs to be proven, but isn't
that also something that could be shown by as a
matter of law potentially? I know you don't agree to this and see if
you can cover all that. Sure, sure. I don't agree that it's a matter of law. It is an issue of fact, and we've briefed
this extensively and argued this before. We believe that even if it's not an issue
of fact, even if the court were considered as a matter of law, we've given ample reasons
why under statute all of these entities have jurisdiction over many of the crimes that
are a
lleged in the indictment, many of the topics that, well, all of the topics where
we've alleged that some of these defendants have made false statements regarding. So I do maintain that I believe that it's
an issue of fact for the jury to decide that we have to put up that evidence. We have to ask the GBI officers, you know,
what is your duty? What is your authority? What can you investigate? We have to ask the Secretary of State off
individuals while they're on the stand, what are your duties? W
hat are your job? What do you do? Why are these things relevant? Why are these material to areas where you
have jurisdiction to do something? What is your ability to act on these things? I think all of that has to come out at trial. And so as it relates to that argument, I think
it's way premature and anything that, again, I always go back to the standard for what
is a demerter, right? But what I'm saying just if there was a statute
that explicitly, you know, said that they didn't have jurisdict
ion. Remind me, what is it that you're saying just
as a matter of law as a parent that provides the governor authority over this after the
Safe Harbor Day? Judge, I don't have the indictment in front
of me, so I need to know specifically what statement we're talking about. I think this is in regard to the certificates
or the paperwork where if an elector doesn't show up on election day or on December 14th
that the governor has to ratify a replacement of that person. I think there were some docum
ents that were
delivered by Mr. Shaffer and his co -conspirators to the governor's office trying to get the
governor to do that. That's provided by statute that the governor
is the one that has to ratify a replacement. So statutory, he absolutely has the authority
to act on that matter. Okay, all right, so I but From the top. I think there's a lot of time spent on definition
of public officer and some of the allegations raised in Mr. Still's briefing which I think
his Motion deadline should be c
oming up soon. So if he's requesting argument, we'd have
him in sure But if you want to make any initial reactions well prepared judge. First I want to kind of I've made this statement
in the past as it relates to Mr. Shaffer and I'll make it again which is we have to address
an elephant in the room. The elephant in the room is that Mr. Shaffer is in the 11th Circuit right now demanding
to be recognized as a federal officer. So what are what are we I mean are we saying
that this position of elec
tor is an officer or isn't I think they need to make up their
mind there but as it relates to well I've actually got quite a bit of ground to cover
and I'll kind of take it as it was as it was raised by Mr. Gillan. I want to start with and again as we pointed
out in our response we don't believe that the definition section in 20 .53 applies. at that so But, Judge, if it did apply, I think it actually
supports us. Because if you look at paragraph B, this is
215322B, it says public officer means e
very other elected state official not listed in
sub -paragraph A. So it's a comprehensive definition of any
elected state official. So we believe that that would absolutely cover
it to the extent that it's persuasive that it shows that presidential electors are public
officers. That definition says any elected state official. So they are elected state officials. I want to hit briefly on the cases that were
raised by Mr. Gillen as it relates to what Mr. Still put in his pleadings, prepare to
addr
ess those. First, there was an intimation that 161023
only applies to police officers or peace officers. We know that that's not true because of a
case called Kennedy v. Carlton. That's 294 Georgia 576, 2014 Georgia Supreme
Court case, where a conviction was upheld for someone impersonating a defects employee,
clearly not a police officer, a peace officer of any kind. So we can dispense with that argument. As it relates to the cases that Mr. Gillen
referenced, you know, the definition of public
officer in other contexts, all of those cases
deal with the definition of public officer in the context of a petition for Cuomo or
Rinto. I believe there's three cases that are referenced
in Mr. Still's pleading. We're filing our response to that tomorrow,
but I can kind of take them in turn. Mr. Gillen referenced this list of qualifications
in the McDuffie case, tenure, emoluments, duties, et cetera. That's not the holding of McDuffie. So the way that the McDuffie case is structured
is the Geor
gia Supreme Court says no one's ever definitively said what a public officer
is in the context of Cuomo or Rinto. Well, look, if you're about to file a response,
and Mr. Beaver may be requesting oral argument, why don't we just save it for when I've had
the chance to read these cases, and then we can be more productive. Sure. skip those cases, but I did want to hit a
few points, Judge, as it relates to the statutes that established that presidential electors
are public officers. First of all, th
e actual office itself is
created by law, so it's created by the United States Constitution, Article 2, Section 1,
Clause 2, and it's also created by OCGA 21 -2 -10. That actually establishes that there is an
office of presidential elector in this state. They have duties that are established by law. Those are established both in the US Constitution
in the 12th amendment, as well as at OCGA 21 -2 -11. By law, they're elected by the public, 21
-2 -10, and also there was a reference that they don't
get a salary. That's actually not true. There's a compensation for presidential electors
that is set forth by law at OCGA 21 -2 -13. Additionally, the election code itself refers
to the office of presidential elector. It refers to it as an office. In two places in particular, 21 -2 -132A and
21 -2 -132E. And again, we again rely on those cases that
Mr. Gilland discussed. Garrison versus the state, 276 Georgia app,
243 2005 case, where someone was convicted for impersonating a federal agent, an
unspecified
federal agent, and that conviction was upheld by the Georgia Court of Appeals, certain was
denied by the Georgia Supreme Court, and then the Lubry case where they, of course, impersonate
the Metro Atlanta Human Trafficking Task Force that doesn't exist. So we would argue to the court that the definition
for 16 -10 -23's purposes, that our courts, our appellate courts have applied a very liberal
definition as a public officer. It doesn't even have to be a real public officer. It doesn
't have to be a state officer. Anything that purports to be, you know, someone
acting by authority of the government is a public officer, and that's certainly what
presidential electors do. Their positions created by law, their duties
are established by law. All right, so jumping down to the forgery
counts. Again, elephant in the room. 16 -9 -1, there's at least five ways that
you can violate the forgery statute. The cases that Mr. Shaffer, the case that
Mr. Shaffer relies on, Jackson versus the
state,
that's someone who is charged with forgery based on purporting a document purporting
to have been made by another person. We did not charge under that provision of
16 -9 -1. We charged under the final provision, which
is by authority of one who did not give such authority. Mr. Gillen says that we didn't object to looking
at these, you know, things in the record. In other cases, let me be clear for the record,
we do object. That's the definition of going outside of
the indictment. So we a
gree with the court that considering
those things outside of the indictment absolutely transforms that into a speaking demure is
void, it can't be granted. If you look at the counts, the forgery counts,
they track exactly the forgery statute. Case law tells us that that's what's sufficient
for a general demure. I don't know that false statements, again,
address that at the very beginning, but I would point out that in Haley, where both
the conviction was upheld and the indictment itself was appr
oved of, the indictment said
this on the false statements counts. It said the defendant did knowingly and willfully
make a false and fictitious statement and representation in a matter within the jurisdiction
of the GBI, a governmental agency, by calling himself the catch -me -killer and stating
that he killed 16 people. It doesn't allege any of the things that Mr.
Shaffer says in his pleadings that have to be alleged, they don't have to be alleged. Like they've done in other motions, defendant
here is trying to add elements to this to this offense that just don't exist, trying
to add pleading requirements that don't exist. And Haley tells us the case itself directly
quotes the indictment. That indictment alleges far less than what
we allege in our indictment and they said that that the Georgia Supreme Court Supreme
Court said that that case is just fine. I don't think that Mr. Gillan addressed the
filing false documents motion. I believe in the pleadings they state that
those counts a
re flawed because they failed to allege that the filing of the false documents
didn't succeed. Again, that's not a requirement in an attempt
charge. And they also say that the counts don't say
who actually attempted to place documents in a mailbox. The way that we've charged the count, we've
charged all of those defendants individually and as persons concerned in the commission
of a crime. And so it will be for the jury to determine
if they have, if all the defendants are liable for what one of
their co -conspirators did. With that, I'll take any questions the court
might have. Thank you, Mr. Woodland. Thank you. Okay, so Mr. Gillan, your last motion we had
for today. The
state did not and cannot answer the direct question about a violation of the safe harbor
rule, why that would allow that situation to give the governor or the secretary of state
any authority to do anything. That comes in under several of the arguments
we've made I won't repeat it but they simply their argument is le
t's put an agent up and
ask the agent whether or not he had authority. No. By law, by federal law they did not have the
authority. It's not whether some GBI agent thinks that
he can come in here and tell the jury pay no attention to federal law pay no attention
to the dissenting opinion in Bush v. Gore. Pay no attention to that. I'm a GBI agent. I say we can do it. That's wrong. They lose their because the law is very, very,
very clear. And we can go back and we'll both the state
and I know the
shaper team will go back to look at our
I don't think so. We'll see. But my recollection was because the pleading
was a part of the court system that we had as a citation which permitted the court to
take that into consideration as part of the record and thus not going outside the record
for speaking to murder. I could be wrong but we'll get that to you
quickly because that, you know, they latch onto that to say pay no attention to the reality
of what happened in this courthouse, in this court,
in the court filings, which destroys
their argument. And so with that, Your Honor, I'll sit down
and then we'll, I'll go back and get my other folder. So, on your last motion here, I think kind
of as we were with the First Amendment issue, I think we need to figure out where we are
procedurally. You know, in a way it sounds like, you know,
this would be a pretty common motion, it would be a surplusage motion. Georgia is not quite as clear for us, so,
excuse me, we're, let's start with just the
authority to kind of take a scaffold to an
indictment and cut out things we don't like. Well, I mean, Your Honor, the, you know, we,
we talk about, there are two, two components to this motion. One, there's the strike surpluses, and then
there's a dismissal that we asked for, which is kind of also a component of the other. Now, you know, we cite the state fee, uh,
Corin, uh, on the issue of being able to, uh, you know, the, the, the, the obligation
of the indictment is not wholly unnecessary to
constitute an offense's mere surpluses. We think... But when we read the surplus of opinions we're
talking about, you know, a miss cited code section or a wrong date or something like
that. So I don't know. I don't think that's what your Care Act... No, no. I guess... This is where I'm coming from. It's more of a legal conclusion, right? I mean, let me, a legal conclusion, number
one, but it's even more than that. It's this, when they continually, in their
pleadings, in the indictment, in their
pleadings, in their extrajudicial comments that they
make, they have bombarded the defendants, the electors in this case with the concept
of, and the phrase of, fake electors. Now, that is not, you know, that is a description,
a conclusion, and a pejorative description. It's a legal conclusion, you very much disagree
with the core of your defense. I think it's not only a legal conclusion,
but it's also something that should be strict because it is just a pejorative statement. I'm saying I can ca
ll you something really
nasty in an indictment, and it doesn't necessarily have to be a legal conclusion about your violation
of a particular law. So that's what we have here, and we have this
permeating this case. Well I'm just trying to, again, based on what
we've seen is allowable in Georgia, let's just make it simpler, if in a murder indictment
someone's alleged to have acted with malice of forethought, that's a legal conclusion. But that's right. And it's something the defendant may really
have an issue with, but we don't strike it, we just go forward and we go to trial. different world, different cases, not the
point that I'm trying to make, what I'm trying to make is, you know, and you put in malice
of forethought because if you put that in there to define the terms Well, what about this one? There's one I remember when we talk about
nicknames and aliases and I remember there's one in Georgia from the 90s They put in an
alias of stomper and he had beat the defendant to death. We
ll, and the Supreme Court said that's okay You know why? Because they probably proved that there was
an alias of that guy called Stomper. That's different than the... file. The state's saying we're going to prove that
you're a lawful elector. No, no, no, no, no, no, in this indictment,
what they have done in the indictment, it's not necessary for, if they want to, if they
want to, and we think it should be stricken, we think the count should be dismissed, we
know that based upon the case law tha
t we cited, but in closing arguments, the Lord
forbid we ever get to closing arguments, hope we don't, but if we did, and they stood up
and they said, well, we think that they were, we think the evidence shows that they were
fake electors. That's one thing, that's argument, that's
advocacy. There's no place for it in the indictment,
and there's no place for it in what they have done not only in the indictment, but in their
pleadings and statements that are made outside to the media. What they ha
ve tried to do is they want to
have ingrained in the minds of the community and of jurors a concept that if you were not
a democratic elector on December the 14th, casting your vote at some other part of the
state capitol, then you are a fake elector, and that is a pejorative term, not necessary
for the charges, and should be stricken. That's the point that we're trying to make. And as it relates to our other arguments concerning
the dismissal of those counts, I don't think I need to go back, mo
st of my argument, or
our argument on that, really deals with the electoral count act, so I don't think I need
to revisit that in case the court really wants to hear that again, I don't think you do. But absent that, Your Honor, we think, number
one, that the counts should be dismissed. The reasons articulated earlier and in our
pleading, and number two, that even if the counts are dismissed, in addition to that,
references throughout the indictment to fake electors should be stricken as well. T
hank you. All right. Thank you, Mr. Yellen. Judge, I'll be brief. Nowhere in this indictment is the phrase fake
elector. It does not exist, literally not in the indictment. So I'm not really sure what we're talking
about, removing something from the indictment that's not there. As the court pointed out, and I struggle with
this motion. I'm not going to say much because we're primarily
relying on our response. But an indictment is itself a legal conclusion. Every allegation in an indictment is a
legal
conclusion. That's what an allegation is. And so if indictments aren't allowed to have
legal conclusions, then I guess we aren't allowed to have indictments anymore. Judge, I think what the defense's strategy
is here, and I know it's their strategy because they ask for it in the motion. They say, Judge, you should strike this language
from these counts because we don't like it. It's not fair. It's pejorative, whatever reason. And now that you've stricken it, the counts
don't charge a crime
anymore. So you should dismiss them because they don't
charge a crime anymore. That's nonsensical. We cited in our briefs opinions where the
public courts say, you literally can't do that. If something's essential to the charge, if
it's essential to pleading an essential element of the charge, you can't strike it. It's not subject to being stricken. And I just highlight one citation that we
referenced in our brief, Malloy versus the state, 293 Georgia 350 2013 Supreme Court
case. And that case
says that when language in an
indictment accurately describes the offenses charged and makes them easier to understand
or more easily understood, they're not subject to being stricken because they're not surplusage. And that in analyzing language in an indictment
in this context, Malloy also says that the language is to be interpreted liberally in
favor of the state. And so with that, again, we rely on our pleadings. The phrase fake elector does not exist in
this indictment. Take any questions t
hat the court may have,
but otherwise, nothing further. Uh, maybe one, uh, you know, I've seen a line
of cases talking about whether defects, you know, can be stricken and a lot of that depending
on whether they're material or non -material. Is it safe to say that these phrases, the
ones that are highlighted here, lawful lecture votes, false electoral college votes, and
duly elected and qualified presidential electors, would you say those are material phrases for
each of the charges they appear
in? So I think that's a great question, and I
think there's kind of a superficial answer, and then maybe a more in -depth answer. My superficial answer is yes, they're material,
in the sense that they make the charges more easily understood. They're accurate to describe the charges. I am familiar with that line of cases, and
it's a little bit unclear in the cases whether material means that, or whether material means
that you strike something from the indictment that the count falls apart. So I'
m not clear what I know is, in this context,
I don't think it matters, because what's being challenged, I think it's approved. our appellate decision. If you happen to go down that road though
and we can take the position that material means that it can still survive, General Demur,
any thoughts there? Judge, again, turning back to Malloy, the
holding in Malloy is that as long as the language and indictment, even if it's not essential
to an essential element, as long as it's accurate, it describ
es the offense's charge, and it
makes it more easy to understand, it's simply not surplusage. It's not a subject being stricken. But do we think these phrases are material
and meaning they're necessary to survive a general demure? I don't have them in front of me. I don't either, and so I hesitate to give
an answer without the indictment in front of me. That's fine. You know, again, as long as the charges track
the statute, they survive a general demurder. So anything that's not statutory langua
ge,
I guess, wouldn't fall into that category. But then we get into special demurder territory,
and that's a whole different situation. Fair enough. Thank you, Judge. OK, thank you all. Anything else we should manage the housekeeping? Anything else we need to take up before we
break? Anything from the state? It's plenty for the sake. All right, thank you, Miss Young. Anything from either council? Okay, and we'll be adjourned. Thank you.
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