Judge McAfee just dealt a blow to the Fulton County Trump indictment

13 March 2024

Fulton County Superior Court Judge Scott McAfee issued a ruling on Wednesday killing six of the felony charges against former President Donald Trump and five other co-defendants.

According to the Atlanta Journal-Constitution, McAfee quashed Fulton County District Attorney Fani Willis' charges of solicitation to violate oath of office, weakening the indictment against Trump along with former New York City Mayor Rudy Giuliani, former White House Chief of Staff Mark Meadows, and attorneys John Eastman, Ray Smith and Bob Cheeley. While Willis' other charges relating to the conspiracy to unlawfully overturn Georgia's 2020 presidential election are still intact, she can no longer prosecute those defendants on the specific charge of soliciting various Georgia public officials to violate their oaths of office.

McAfee ruled that the language within the charges themselves was too broad and could be interpreted in a number of ways, granting what's known in the legal world as a "special demurrer." The judge elaborated that when Willis alleged that Trump and the five co-defendants in question solicited Georgia lawmakers and Georgia Secretary of State Brad Raffensberger to violate their respective oaths of office (which include in part a vow to uphold the US and Georgia constitutions), she didn't fully specify in charging documents which parts of the Georgia state constitution the officials were asked to not uphold.

"[T]his Court finds that the incorporation of the United States and Georgia Constitutions is so generic as to compel this Court to grant the special demurrers," McAfee wrote. "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. However, the lack of detail concerning an essential legal element is, in the undersigned’s opinion, fatal."

"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," he continued. "They do not give the Defendants enough information to prepare their defenses intelligently, as the Defendants could have violated the Constitutions and thus the statute in dozens, if not hundreds, of distinct ways."

However, McAfee appeared to bolster Willis' indictment in other ways despite killing those six charges. He denied the defense's motion to quash the "overt acts" in count 1 of the indictment, writing: "Overt acts alleged as part of a conspiracy are not held to the same pleading standards as statutorily based offenses."

"And even then, a defendant can be found guilty of conspiracy even after acquittal of any overt acts alleged to have been committed by that defendant, as long as at least one overt act is proven to have been committed by a co-conspirator," McAfee ruled. "Defendants have not provided any authority requiring that the particulars of an overt act be alleged or subjecting overt acts to the standards of general or special demurrers. The Defendants’ challenge of these overt acts is therefore denied."

McAfee's ruling on those counts comes just days before he is expected to hand down a separate ruling pertaining to the ongoing effort by defense attorneys to disqualify Willis from prosecuting the case. Last month, McAfee convened several public hearings to hear challenges by lawyers representing Trump and his co-defendants alleging Willis engaged in inappropriate behavior with her co-counsel, special prosecutor Nathan Wade, that constituted a conflict of interest.

That effort may not prove successful, as the defense's star witness, Terrence Bradley (Wade's former law partner) failed to provide any smoking gun evidence while on the stand that Willis and Wade began their relationship prior to when they admitted under oath that they started dating. Defense attorneys were hoping to debunk Willis' statement that she didn't start dating Wade until after he was brought onto the case, which would have amounted to perjury and not only disqualified Willis and Wade but potentially led to disciplinary action from the Georgia state bar.

Instead of confirming the allegations, Bradley said on the stand that he was merely "speculating" on when the two prosecutors began their relationship and that he couldn't stand on claims made in text messages to defense lawyer Ashleigh Merchant. McAfee is expected to issue the ruling on the disqualification matter by the end of this week.

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