“It doesn’t gut the case”: Experts say dropped Fulton charges won’t help Trump “at all”

The judge overseeing Donald Trump’s Georgia election interference case tossed out a spate of criminal charges against the former president and his allies Wednesday.

In a 9-page ruling, Judge Scott McAfee dismissed six counts in the sprawling racketeering indictment against Trump and his co-defendants, including former chief of staff Mark Meadows and attorney Rudy Giuliani, citing insufficient details undergirding the charges. Three of the counts were against the former president, who now only faces 10 charges.

“As written, these six counts contain all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited. They do not give the Defendants enough information to prepare their defenses intelligently,” McAfee wrote, according to NBC News.

The dismissed charges related to the defendants’ alleged solicitation of Georgia officials to violate their oaths of office. 

McAfee determined that the indictment’s language was too “generic” and failed to specify the exact part, oath and constitution — state or federal — the defendants had been accused of pressuring the officials to breach. 

His decision is “pretty straightforward” and, as it stands, “shouldn’t affect the case at all,” Atlanta defense attorney Andrew Fleischman told Salon. 

“Even if you went to trial and got convictions on those, along with the RICO count, they would probably, what’s called, merge,” Fleischman said, explaining that someone could be charged with the same crime “five different ways” but later be convicted of just one, all-encompassing crime.

One of the quashed charges pertained to Trump’s infamous call to Georgia Secretary of State Brad Raffensperger, asking the official to “find” just enough votes for him to edge Joe Biden out of his electoral victory in the state. Another charge was connected to a letter Trump sent Raffensperger pressuring him to “decertify” the 2020 election results.

“The Court’s concern is less that the State has failed to allege sufficient conduct of the Defendants – in fact it has alleged an abundance,” McAfee wrote. “However, the lack of detail concerning an essential legal element is fatal.”

The problem is that the oaths that prosecutors hinged the charges on are “very vague,” Melissa Redmon, a University of Georgia School of law professor and former Fulton County and Clayton County prosecutor, told Salon. 

Unlike other public officials who have some greater specificity in their oath — like prosecutors’ vow to “carry out their duties without fear or favor,” Redmon explained, Georgia officials like those implicated in the case generally “just take an oath to support the constitution of Georgia and the United States Constitution.”

For the dismissed counts to have remained in the indictment, prosecutors would have needed to “point to a clause, an article or a paragraph that says you’re not supposed to do this particular thing that [the defendants are] alleged to have done, or that they were trying to get the public officials to do,” she said. 

Trump and the co-defendants impacted by the Wednesday ruling, including Giuliani, Meadows and lawyer John Eastman, have pleaded not guilty. The decision places Meadows in “the best position,” Redmon added, because one of his two charges was dismissed.  

McAfee did leave open the possibility of Fulton County, Ga. District Attorney Fani Willis’ office pursuing a reindictment expanding the six scrapped counts with more details. He also permitted the relevant events connected to the counts to remain “overt acts” in the larger racketeering indictment. 

That means “prosecutors will still be able to present the story about the phone call, the presentation to the state Senate committee, and the effort to overturn the elections played out by those various parties,” Redmon said. 

The decision also leaves Willis with three main “prospects” for how she can move next, she added. 

First, Willis could request within 10 days an “immediate review” from an appellate court to hear the case, which McAfee indicated he would be likely to grant in his Wednesday order, Redmon said. That would further lengthen the case’s timetable because the appeals court has 45 days to inform the state of whether they will hear it, and then the appeal must take place. 

Willis could also “find that language” McAfee seeks from the relevant oaths that public officials were allegedly asked to violate and wait six months, per Georgia law, to reindict those charges with greater specificity. Or, Redmon said, she could accept the judge’s ruling and move forward with the case.

“It’s just as likely that she will accept the judge’s ruling and just proceed with the case without those charges in the indictment as she may reindict it if there’s a particular clause of the state or federal constitution that she can directly relate to that conduct being a violation of,” Redmon said.  

But reindicting the case would be “dumb,” Fleischman said. “If she reindicts, that would be a big mistake because that would offer an opportunity for people to ask to be re-arraigned.”

Rearraignments would allow parties in the case to file motions again, with new information, like cell phone and other evidence that may not have been previously introduced, he explained. That would pose a risk to the disqualification matter regarding Willis and a prosecutor in her office that the judge is currently evaluating. 

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McAfee is expected to rule this week on whether Willis should be disqualified from the case, following allegations from a defendant’s attorney that Willis financially benefitted from an improper relationship with special prosecutor Nathan Wade, whom she hired to her office to assist in the election interference case. 

The “big takeaway” from the judge’s Wednesday order is that “it doesn’t gut the case” and it “doesn’t really affect it,” Fleischman said. “The only way it could have a negative impact is if they reindict and open the door for more motions and more delay.”

The order is also entirely “unrelated” from the motion to disqualify Willis from the case, he said, noting it “doesn’t really tell you anything one way or the other.”

The only way they could relate would be if, like in Wednesday’s order, McAfee feels the matter is “also a close question” and indicates similar thinking on granting whichever side he rules against the opportunity to appeal before the case is tried, Redmon added.

Considering the potential time frame, “along with the other motions that still have to be heard,” the earliest the case will go to trial “will be towards the end of the year,” Redmon predicted. 

“I don’t think it’s likely to begin before the election in November, though,” she said. “More than likely, I think next year is a safer bet.”