Trump's constitutional argument in GA case is a 'losing one': Kimberly Atkins Stohr

I want to bring in NBC's Blain Alexander who's following the developments out of Fon County Kimberly Atkin store is a Boston Globe columnist and MSNBC political analyst and MSNBC legal correspondent Lisa Rubin joins me here on set okay Blain several hours in court today get us up to speed on what happened yeah well let's talk first about what we heard in the courtroom today and then I'll talk about the overall significance of today's hearing so what we heard in the courtroom is exactly what you

laid out Chris a First Amendment argument uh by the former president through his attorney Steve sow basically saying that everything that was being alleged in this indictment is free speech at one point he said zow said you know calling into question uh at least the election of 2020 for the president quote that's the height of political speech so that's what we heard from the president's side but what the state is arguing is okay but all of these amounts to underlying acts that make up the overa

ll criminal charge so you can't do them if they're in fur if they're in furtherance of a criminal conspiracy which is what the state is alleging here now of course we heard all this it took about an hour and a half or so um and this is just the latest attempt by the former president to get these charges thrown out here in fton County but what this represents overall is an even bigger picture this is the very first time that we've had a hearing over the past two and a half months or so that actua

lly had to do with these charges that actually had to do with this indictment and didn't have to do with the allegations against fing Willis and trying to get her thrown off the case so what today really represents is the fact that this case is a essentially back on track going over the Motions that were filed before this kind of bombshell thing that that came in and upended everything here in Georgia and it also represents that the timeline that fonnie Willis is hoping for again she's hoping to

see this thing go to trial by early August she's still moving forward with that even though we know that Trump and his attorneys are planning to appeal that decision to keep her on this case all right let me bring in Christy Greenberg former Federal prosecutor and MSNBC legal analyst and dig into this legal first Amendment argument Chrissy anything jump out at you that might lead you to believe that judge McAfee would be more open to this argument from Trump's attorneys than say judge chuckin w

as when she rejected the similar argument not at all um look this is a really fundamental principle that speech INF furtherance of criminal conduct does not receive first amendment protection and judge McAfee seemed highly skeptical of Donald Trump's attorney's arguments to contrary I mean there are various allegations in the indictment here about soliciting State officials to unlawfully appoint fake electors uh to ask you know the Secretary of State to find him 11,780 more votes soliciting the

doj officials to make false statements about election fraud soliciting Mike Pence to delay The Joint session of Congress where they would count the votes all of those things are speech but their speech in furtherance of a criminal conspiracy and so they don't enjoy first amendment protection and I I do think that this is an easy one for judge McAfee to uh to easily bat away so there are indeed lots of laws that make it uh illegal to lie to the government let me play a little more of the back and

forth we heard in court today he's not being prosecuted for lying he's being prosecuted for lying to the government a state an act which is illegal because it does harm to the government that's the exact reason why 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 in sense of communication U with or to the government is best dealt with through true speech not through prosecutions in because prosecutions chill

speech what do you make of that back and forth Lisa ruin I'm going to say generously I think Donald wakeford who's the lawyer arguing that for the District Attorney's office has the better of the argument of course there are very generous protections to core political speech offered by our first amendment case law on the other hand the case that Steve Seda was citing most frequently this morning to support his argument doesn't exactly say what he says it does it's a case that has to do with the

invalidation of something called The Stolen Valor Act it was an Act Congress passed to prohibit people from essentially saying I received this medal when in fact they did not but here and in that case what the justices said was that of course doesn't stop Congress from passing a law that punishes speech that's sort of incidental to or even integral to other criminal activity as chrisy was saying and here as Donald wakeford was saying we're not punishing the guy for lying the charges have to do

with who you lied to and what harm you cause so for example you can't lie to the government either in a statement or in a false writing that's as fundamental to our system of justice as just about anything else christe knows H that the courts of this country are littered with prosecutions for false statements or false writings to Congress to the FBI to prosecutors themselves if the First Amendment protected against that there's a whole slew of code Provisions in the US code that would have to be

xed out Chris so Chrissy if it's I don't want to say that cut and dry but if it's been rejected so many times a couple of times here another you know case as we mentioned before why is it even being hashed out now why not if you're going to Hash it out during the trial and at some point does a judge say enough with these first amendment arguments this has been decided so I I think that's where this will end is that you know Donald Trump wants to challenge for example uh that you know he had a r

easonable belief uh that that um that the election was stolen and those kinds of arguments that really doesn't implicate the First Amendment that's really about whether or not the jury believes that he made these false statements knowingly that's what makes it a crime just making false statements on on its own is is not is not criminal it's when you're making the false statements knowingly uh and in furtherance of a criminal scheme that's what's going to make it a crime so again those are issues

that will be hashed out at trial not at this hearing so Kimberly how much of these motions do you think um particularly Trump's First Amendment argument is for public or political consumption more than the thought oh we're going to we're going to get them to toss this case yeah so I actually think and his his legal team does a lot of deflection a lot of political messaging in these cases I think what you're seeing today is something that is very normal and run-of-the-mill when you have a crimin

al trial before that trial gets started the defendants almost always always bring a motion to dismiss some all of the charges and present the best arguments they have they do it for a number of reasons sometimes they have really good arguments I think on this side I agree with the other panelists saying that this is a loser today other times it's to preserve these issues on the record so that you can appeal them later and and also just as a good litigator you would take as many shots before the

judge as you possibly can you try to bring it at this point and then once you get into trial you make these arguments again that can be handled then and then if you're on the losing side you can use them on appeal as well so what you're seeing play out to playing out today is probably closest to the sort of normal kind of litigation uh as as opposed to a lot of abnormal things we've seen in some of these cases but I will say one point about the Merit argument that sow was making he was saying th

at it's it's protected by the First Amendment because Donald Trump was as he said uh dealing with elections and campaigning that word campaigning he should proceed carefully of course right because Donald Trump right now is asking the Supreme Court to rule that he is immune from prosecution in the federal cases because he was acting in his role as president not as his role as a candidate who was doing campaign activities so this first amendment argument uh goes against another argument that he i

s making before the US Supreme Court and that's dangerous territory right there as you were speaking Kimberly Lisa was looking at me and mouthing so smart do you want to add something to that do I mean I think what Kimberly observed today is a perfect illustration of why Donald Trump's multiple legal troubles and his multiple legal teams are itelf dangerous for him because without any nefariousness they will take positions in one case that can be dangerous to or antithetical to positions that th

ey're taking the other so as she noted in the federal election interference case that is going up to the Supreme Court on the question of presidential immunity they are trying to say he is immune for his official acts if on the other hand Steve sow was saying in a Georgia court that what he is doing here is basically campaigning and electioneering that defeats the claim that he deserves immunity for an official act and we've seen that kind of crosshairs between lawyers representing Trump in thes

e cases before he took a position for example in the New York hush money case that is going to trial next month he originally tried to remove that to Federal Court saying that he was a federal officer and therefore he deserved to have him his case moved to Federal Court the only problem problem with that is calling himself a federal officer would have doomed him with respect to some of that 14th Amendment litigation that ultimately absolved itself in his favor but he those two positions were cro

sshairs with each other then too and we see it again today Chris so uh Blain we should note that even though judge McAfee ruled that da fonny Willis can stay on this case is there still a chance she could be removed there is because we know that it's going to be appealed and so when we kind of look at just the time line of this first Judge Scott McAfee has already given the green light for Trump and his codefendants to appeal Steve sow has told me in conversation and also in public filings that

he has every intention of doing just that and he's got until Monday to file that paperwork so we know that there's going to be an appeal but what's interesting about this Chris is that we now have two parallel tracks playing out while this makes its way through the appeals court we wait to see um whether it's going to be taken up what happens there it's also going to be moving full steam ahead here in the Fon County Court so we know that what we had before was all of this was kind of lumped toge

ther basically nothing was moving forward in the case uh until we decided until the issue of whether fonnie Willis would stay on the case was actually decided now those two things are separate so the appeals process is going to be moving forward there is a chance that those judges make a different decision but at the same time the timeline here in fton county is also going to be moving ahead as well until we get a Kimberly to the actual trial or any actual trial right assuming uh we know which o

ne is coming next uh do any of these wins or losses in court do you think affect the politics of this until there actually is a verdict are we just set where we're set no I think each time that the public gets to see how these cases are playing out it's important uh politically to their ability to make a decision as to how if any these cases impact their voting decision so I think that Donald Trump's campaign is very aware of that and so is his legal team I think sometimes the messaging you see

is is an honest uh argument but a lot of times you see that it is disingenuous there is a lot of electioneering I honestly think the entire bid to disqualify fonny Willis was on the more political side especially the way it played out in contrast to what we're seeing today which is his team making a constitutional argument that they have every right to make that I think they'll it's a losing one but they still have the right to make it I see but all of those things of course are really important

in how these cases play out uh in the public eye because that's going to factor into the decisions that they make in the election box hey everyone MSNBC has a new and improved app you'll get real time alerts and Analysis live blogs in-depth essays video highlights and the best 2024 election coverage download the new MSNBC app here's how to do it you tap on the App Store on your phone you hit search on the bottom right corner you type in MSNBC you click on the MSNBC app you click on get or the c

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