Former President Donald Trump was dealt two major setbacks Thursday in his efforts to derail the criminal cases against him, with judges in the Georgia election interference case and in the federal classified documents case both rejecting bids by the presumptive 2024 GOP presidential nominee to have those cases thrown out.
The judges in both cases have yet to decide other requests put forward by Trump seeking the dismissal of the Georgia and federal prosecutions, which were brought by Fulton County District Attorney Fani Willis and special counsel Jack Smith, respectively. But for now, the prospect of the cases eventually going before juries remains alive, and a trial in a third criminal prosecution against Trump – the 2016 campaign hush money case brought in New York – is on track to start this month.
The New York case aside, the likelihood that the other prosecutions against Trump – which also include a federal election subversion case brought in Washington, DC, by the special counsel – will go to trial before the November election is very much still in the air. Delay has been a key part of the former president’s strategy, and he has had considerable success in prolonging the pretrial litigation in the prosecutions against him. The DC case, which at one point was moving the most quickly among all the Trump criminal cases, is now on hold while the Supreme Court considers whether Trump’s status as a former president grants him immunity from those criminal charges. Those arguments are scheduled for this month.
Trump has made similar presidential immunity arguments in the Georgia case and in the classified documents case. He has pleaded not guilty in all four criminal cases.
In the classified documents case, which is proceeding in south Florida, US District Judge Aileen Cannon on Thursday declined Trump’s request that she dismiss the case based on his arguments that he had the authority to take classified or sensitive documents with him after he left the White House.
Cannon’s short order, however, kept open the possibility that Trump could still use the argument to defend himself at trial or could bring it up in other pre-trial proceedings.
The judge, a Trump appointee, didn’t detail her views on the claims Trump was making, based on a law called the Presidential Records Act, but said Trump’s attorneys did not meet the legal standard to dismiss charges.
She wrote that prosecutors “make no reference to the Presidential Records Act” in the indictment against Trump and did not “rely” on the statute to bring charges.
Cannon also used the order to push back on a request by the special counsel she make a final ruling on whether the theory could be incorporated into the jury instructions of an eventual trial, so that prosecutors could appeal such a ruling to the 11th Circuit. She said that “demand” was “unprecedented and unjust.”
There are still more than a dozen outstanding motions for Cannon to decide, including several other motions to dismiss the case.
In the Georgia election subversion case, Fulton County Superior Court Judge Scott McAfee rejected the argument that Trump’s alleged efforts to overturn the 2020 election were protected under the First Amendment.
“The defense has not presented, nor is the Court able to find, any authority that the speech and conduct alleged is protected political speech,” the Atlanta-area judge wrote in his order.
McAfee’s ruling is the latest step inching the state racketeering case against Trump forward. Willis has suggested she would be ready to go to trial as soon as August, but the judge has still not set a trial date for Trump or his remaining 14 co-defendants in the Peach State.
The decision comes as some of Trump’s fellow defendants consider seeking a gag order against Willis after she has made public comments about the case.
McAfee’s refusal to scrap the indictment comes as the free speech defense has repeatedly fallen short in pretrial wrangling in election meddling cases.
“After interpreting the indictment’s language liberally in favor of the State as required at this pretrial stage, the Court finds that the Defendants’ expressions and speech are alleged to have been made in furtherance of criminal activity and constitute false statements knowingly and willfully made in matters within a government agency’s jurisdiction which threaten to deceive and harm the government,” McAfee wrote in his order issued Thursday.
McAfee previously rejected similar First Amendment challenges from other defendants in the Georgia case. In the federal election interference case brought in Washington, DC, by the special counsel, Judge Tanya Chutkan also heard – and rejected – the argument that Trump’s actions should be considered protected political speech.
The Fulton County district attorney’s office declined to comment on Thursday’s order from McAfee.
Trump’s Georgia lawyer Steve Sadow said in a statement that Trump and other defendants “respectfully disagree” with the ruling and will explore their options.
“It is significant that the court’s ruling made clear that defendants were not foreclosed from again raising their ‘as-applied challenges at the appropriate time after the establishment of a factual record,’” Sadow’s statement read.
Why Ty Cobb doesn’t buy Judge Cannon’s ‘incompetence’
While the new order from Cannon in the federal classified documents case was a loss for Trump, prosecutors were also rebuffed in their request for more clarity from the judge about how she views the Presidential Records Act in the context of the case.
Smith made the request when Cannon ordered both sides to submit hypothetical jury instructions that would take into account Trump’s claims of sweeping record-retention authority.
Cannon defended that exercise in Thursday’s order, saying it should not “be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”
The post-Watergate PRA governs how records are handled after an administration ends, including the turnover of presidential records to the National Archives. Trump has claimed that under the law, he had the ultimate authority to decide which documents are his personal records that he’s allowed to keep in his possession.
Prosecutors have maintained that the PRA is not relevant to the charges. In court filings, they argued Trump’s theory that the law allowed him to designate the classified records as his personal documents was a “fiction” invented many months after he let office.
Cannon said Thursday that her requests for jury instructions “should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case.”
This story and headline have been updated with additional reporting.
