itchy pet? (♪♪) with chewy, save 20% on your first pharmacy order so you can put an end to the itch. get flea and tick medication delivered right to your door. [panting] there's nothing better than a subway series footlong. except when you add a new footlong sidekick. except when you add a new footlong sidekick. like the all american club. with the new footlong pretzel. they're the perfect team. are you and that sidekick having a moment? don't judge us. every epic footlong deserves the perfect sidekick. good morning, it is 10:00 a.m. eastern, 7:00 a.m. pacific, i'm josé diaz-balart in for ana cabrera. happening this hour in georgia,

a hearing in the election interference case against donald trump and his allies. it's the first since the judge's decision on the future of fulton county's d.a. we'll take you to the courtroom. plus, two victims found in the wreckage of the bridge collapse in baltimore, this as the ntsb releases new details from their investigation into what happened. and later, three's company, president biden bringing out the huge star power presidents obama and clinton for a big dollar fundraiser in new york city. ♪♪ and we begin in georgia where a judge is about to convene a hearing in this sweeping election interference case into donald trump and his allies. it's the first since proceedings were in limbo over a motion to dismiss fulton county district attorney fani willis, and since several charges were actually dismissed in the case. i want to bring in msnbc legal

correspondent, lisa rubin, also former georgia federal prosecutor, amy lee copeland, and former u.s. attorney harry litman. so lisa, what exactly is this hearing about today? >> so jose, we have a number of motions regarding the indictment that still haven't been dealt with by judge scott mcafee. that's in large part because for over two months, judge mcafee was dealing with the motion to disqualify d.a. fani willis. the motions today go to president trump's assertion of his first amendment rights, and in particular saying that the allegations in the indictment go to his right to have core political speech that they are trying to criminalize, his right to say that the election was stolen from him, but are not themselves emblematic of criminal conduct on his behalf. >> and lisa, where does the case stand now? i mean, we were unsure if this was going to continue some time ago. >> we were, and jose, we were also unsure if it continued who it would continue with. now that we know that d.a.

willis remains in control of the case, we will get to a point where she will ask judge scott mcafee to set a trial date. so far she has insisted that one trial should happen of all defendants who remain as of a particular point in the pretrial proceedings. she has said that june should be the deadline for any defendant who wants to cut a plea deal with fulton county's district attorney's office should do so and that a trial should happen in august. last week in public comments, she doubled down on that saying that she wants a trial to happen this summer. let's see whether representatives of her office and/or the district attorney herself tried to make that a part of today's hearing. it's not formally on the agenda judge mcafee has set forth for today's hearing. >> as we see these live pictures from atlanta, that hearing has begun. and amy lee, as lisa was referencing, we still haven't received a start date. when could we expect that? and how much did this motion to

dismiss willis push things back here? >> good morning. let me answer the second question first because i think that's the easier one. right now it's winding its way through an application process with the georgia court of appeals. we should know in a couple of months whether or not the georgia court of appeals will hear this disqualification motion. if they do, that could lead to an opinion sometime in november at the earliest. that would really push the trial date back. while judge mcafee said he's not going to say anything other than the disqualification motion, who can try a case certainly seems to go to the disqualification motion and go to whether they can set the case itself. but the d.a. has always said that she's ready to go and i have no doubt about it. she said she just needs 30 days. today at the hearing too, we're going to hear a lot about the first amendment claims. just as a reminder, these have been roundly rejected by various courts. judge chutkan rejected it in the january 6th case. in a prior first amendment challenge by defendants in this case who pleaded guilty, judge

mcafee said some of these things need to be addressed at trial. so i don't expect the defendants to get much traction with their first amendment motion today. >> and so, amy lee, could we say maybe that this case is now back on track? >> i hope it's back on track. it needs to be back on track. a lot, though, rests on what the appellate court is going to do, and like i said, that's about a 45 to 60-day out decision that we're waiting for. >> so harry, does trump have any shot at getting this entire case thrown out? >> no, not today. look, just as lisa said, this has been around the bend in many different courts and before this. of course crimes can be committed by speech, many are, like conspiracy and solicitation and the exhortation he made on the ellipse on january 6th, that doesn't make them protected by the first amendment. there's a very strong line that the supreme court has drawn

between lawful political speech and unlawful solicitation or unlawful conspiracy or unlawful rico as is the court charge in this case, and i think it's just mcafee wanting to get back on track. it's sort of a basic work a day motion, and maybe that's why he chose it now to sort of get proceedings back to order, but trump's prospects for prevailing here are slim to none. >> and so lisa, i mean, so what does the judge have the authority to do or not do today? >> so jose, he could reject certain of these pretrial motions to dismiss the indictment in whole or in part from the bench. he could also reserve judgment and say that we'll see where he's headed in a written opinion in the future. judge mcafee generally has not ruled from the bench in this case. but that doesn't mean he hasn't given us an indication of where he's leaning. my instinct is that today he

will let us know how he's feeling. he'll telegraph what he's going to do with these motions. i agree that these motions are not likely to get rid of either all or part of the case, but will likely have to wait for a written opinion from him. and of course he's got a lot of other pretrial motions to deal with. the most notable of which is a motion to dismiss from former president trump on presidential immunity grounds. judge mcafee, of course, may be holding his fire on that motion until after april 25th when the supreme court holds oral argument on president trump's efforts to get rid of the federal election interference case on those same grounds. >> and so, lisa, stand by, if you would. let's go into our courtroom and kind of listen in a bit. this is the state. >> 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 fax writer for a jury.

>> looking at all the cases that you found, ones that didn't do it, generally are going to say we don't have the record, we don't have the facts. are there any that say if i look at the indictment. >> it's a case your honor cited in october. we're not going to get into the -- >> the 11th kir circuit case. >> i'm talking about the major case, the georgia case. 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 it talking about. when you look at what the defendant wants to argue about today, i was just advocating, i was just speaking my mind, so all of this is protected, and therefore the entire thing has to go away. that is a question -- >> i think that's your strongest argument on if we're in the analysis of the as applied

challenge. i'm still trying to get over and really understand the procedural element of it. >> and that's what major says is because that intent question has yet to be answered and the jury is the person -- 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 as applied challenge can succeed at this stage because there's still questions that have to be answered. >> i think that was an over breadth on terroristic threats. >> it moves into an as applied challenge. >> it they actually say premature or just say denied? >> they say that -- 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. >> so does that actually maybe suggest then that they did do as an applied challenge, which is very 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 to criminal conduct is not protected. a well pleaded indictment is going to demonstrate that speech that is pled as part of a criminal charge is integral to criminal conduct. so there is no -- there's nothing to decide. if you're looking and you're cabined by the indictment. so we sort 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. 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 the speech is pled as integral to criminal conduct. >> you could envision an indictment. you could envicks an indictment where perhaps they drafted it to solely target speech because of its falsity or something like that. maybe there's a use for an as applied challenge in that kind of a situation! that's a fair point your honor, and it's just not the situation here.

that was a special case where you have a very unique statute that was punishing -- but that was really an official challenge. i'm 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 more -- there's facts that have to be established 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. let's move forward with the idea that we're making an a as applied challenge, solely confined to the indictment. this isn't a facial challenge. you're not saying any of these statutes are on the face unconstitutional, and your argument is that this is core political speech. >> correct.

>> so some crimes can be achieved solely through speech though, terroristic threats. 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. >> 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 as facts is, in fact, core political speech, political discourse, protected speech at its zenith. 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 core 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 involved 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, from what 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 in detail everything that alvarez said, but i think alvarez is in court because even when you talk in terms of -- and i'll start with -- we're looking at the majority, what i would -- 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. we're talking about two people still on the court. and i'm looking specifically at

page 723 in which the court goes on to say were the court to hold that the interest and 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 power unprecedented in this court cases or in our constitutional tradition. 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 -- state's position with truth. moving beyond 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 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, dada dada, in public context where they may stop panic or even in scientific context where as socrates examination, examination of a false statement can promote a form of thought that ultimately helps realize the truth. and then it goes on and says even a false statement may be deemed to make a valuable contribution to public debate since it brings out the clear perception. 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 the end of the analysis. >> why do we not also have to assume since it's an allegation, and i think you said in your brief, that it's unlawful, willful and knowingly false. >> because at least our position president trump's position is those 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 valor act. just because they allege that it was unlawful, didn't mean it wins. that is, it doesn't mean that 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, right? so we make legal conclusions in indictments all the time. i think that's going to be part of mr. shaeffer'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 in an as applied challenge, and i'm trying to figure out why. >> as to -- 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 -- those overt acts and then those -- the same time and then 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's stuff -- situations, context that 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 dealing with elections and campaigning, calling into question whether it 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 -- and this is 752, excuse me. even where there is a wide scholarly consensus concerning a particular matter, 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 out the clear perception and livelier impression of truth produced by its collision with error citing u.s. supreme court. that's the essence of what we have right here. that's the facts that have been alleged. essentially the state's position is because, as alleged, what

president trump said speech-would i say 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 protections of the first amendment, and the concurring 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 in its filing on september 27th, 2023, in response to that which

was filed. it didn't deal with the as applied. >> and more so on that one as i go back and look at it, there was a much more kind of concerted effort to bring in facts outside of the indictment, right? and they started talking about, well, there was a transcript at the meeting. there was this. you know, so it didn't really seem to be a true as applied challenge, right? >> but as the court noted in his order, at that point it didn't determine that it was right for a pretrial challenge. so i'm taking wha it applies mow. it was both as to facial and as to applied challenges. essentially what it says as to those counts, 9, 11, 13, 15, 17, and 19. the mere fact that it alleges a fraud is enough.

that is -- that's what's on page 5 and page 6. it says 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. >> so as we continue listening in on this courtroom, the atlanta courtroom where this conversation has been going on for some time now, i want to kind of get a little context of what we're listening to. i want to bring back lisa rubin, harry litman, and amy lee

copeland. lisa, what exactly -- for the long time now, this morning, they've been talking about first amendment protections versus criminal conduct. now trump's attorney is now shifting towards pierce counts. what is it that we've been witnessing here, lisa? >> what we're really listening to, jose is steve sadow's attempt to say is underlying each of the counts against former president trump, whether it's the main rico count or some of the other conspiracy counts, there are conspiracies, for example, to make false statements or false writings, conspiracies to impersonate public officers, et cetera. he's saying that all of the underlying conduct that president -- former president trump is accused of here representing core political speech. and as such, his conduct is protected by the first amendment. the case that he is talking about right now, i can hear it in my ear, they're talking about a supreme court case called alvarez in which the supreme court threw a plurality, there wasn't a majority, but through a

cobbling together of various opinions you could get to an outcome. that case stands for the proposition that a particular congressional law, the stolen valor act was ruled to be unconstitutional because what was said to be criminal under the stolen valor act was falsely relating that you had a particular medal or decoration conferred on you by the military, and he is trying to use that al alvarez case saying what is alleged against former president trump solely sounds that political peach and core political speech is at the heart of the first amendment's protection and counts against former president trump cannot lie even if the conduct seems to involve something more than speech that at its base it really is nothing more than what he is saying that might inspire or lead to him -- lead to allegations of a conspiracy with other people to commit crimes under georgia law. >> and so, amy lee, in effect,

what we're seeing today is a petition for the judge to essentially, if he rules with trump and his team of lawyers there, essentially saying this case is thrown out. that's a possibility, that certainly the trump team is asking for? >> that is exactly what they're asking for. a facial challenge to a statute says no matter what this statute is unconstitutional under the first amendment. mr. sadow is making an as applied, as applied to mr. trump, the statute is unconstitutional. i keep hearing words like context, whether it's true or whether it's false and you've got to consider all the circumstances. as an attorney when you hear words like that to me, that says, man, we need a trial to ferret all of this out. there are all these factual disputes and the indictment is

what the judge says we just need to look to right now, and the indictment, i think, is going to be sufficient to withstand the trump team challenges to it. like i said, especially when you have someone'snow talking about context, which does seem to be something a jury has to resolve. >> so harry, should we read anything into the fact that this case or this hearing is being carried out in and of itself? >> no, they're just saying let's look at the indictment because it's all we have. there are two arguments, and they're both sleights of hand. that doesn't get to the point of what's criminal about it and all the things lisa mentioned. the second -- and this is the big misuse of alvarez -- he's saying that the state has charged a crime only because trump's speech is false. that's just not at all what the indictment says.

it is true a that trump was saying all these false things, but it's what he was doing in addition, exhorting people to riots, eliciting people to change their votes, conduct that is illegal rather than speech that happens to be false. alvarez is not on point, doing his best with a very poor hand, but mcafee will see through it easily. >> l please stay close. we will of course continue monitoring this. we'll have much more on this hearing after a short break. stay with us. t break. stay with us

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get started for $49.99 a month plus ask how to get up to an $800 prepaid card. don't wait- call today. 33 past the hour, we are back with a live look inside the atlanta courtroom where donald trump's lawyers are arguing to have the election interference case thrown out on first amendment grounds among others. let's listen back in for a bit. >> president trump or any of these other counts. 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. >> thank you, mr. sadow. 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. sadow's

argument would be alvarez because that's a fractured kind of plurality opinion, i'm wondering if you have any thoughts on how that could drive this. the state back in december was citing alvarez as a primary case. i wonder if that's even the best one for your arguments. >> well, i think to address the first, i think, elephant in this courtroom is that a judge in d.c. has evaluated all of these arguments under supreme court precedent already. 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, it is a plurality opinion with 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 does not product under the first amendment, and 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 that 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 violations of the law. he is free to say -- to make statements and to file lawsuits and to make other legitimate protests. what 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 make false statements to the government. that's what he's alleged to do. he's not charged under 161020 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 being prosecuted for lying to the government, an act which is illegal because it does harm 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 that 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 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, computer theft, computer trespass and on and on and on. what the defendant is suggesting to your honor is trying to get around 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. that's not the end of the inquiry at all. that's not what the 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 deployed with criminal activity

with criminal intentions, and we finally get to a place i knew we would end up, which is saying -- i believe your honor was requested to, think about it not as lies but as legitimate concern about election issues. well, that sounds like a trial argument to me. 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 them as lies because they weren't true. or you could think this is just well intentioned concerns from an 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. 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 only say, well, it's all speech. it's all talking.

he was just the guy asking questions and not someone who was part of an over arching criminal conspiracy trying to overturn election results for an election he did not win by violating the rico statute, by making false statements to the government, by filing false documents, by impersonaing 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 speech being punished solely because it's false, solely because of its viewpoint, or is it's speech that's 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 which i think the fact that it

can be employed as part of criminal conduct. the mere fact that you're talking about issues the public concern or core political speech, which may be completely fine and protected in certain -- in most contexts, does not mean that you cannot be indicted if you use that kind of speech to pursue illegal activities. that's the whole nature of the question. so it's very circular, and i would direct your honor to page 6 to 7 of the post-hearing brief filed by defendant trump. exception of the first amendment does not apply here pause all the charged conduct constitutes first amendment protected speech. that is a very neat circle. the first amendment protects us because all the speech 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 indictment and has to look at the indictment and can't look beyond it, if we're going to get into it at this stage, there's nowhere to go. this is all alleged as part of criminal conduct and not protected by the first amendment. any argument otherwise is to try to pretend like that's not true. >> all right, thank you. >> thank you, your honor. >> may i add one point briefly? >> sure. >> thank you. >> wait a second, we're being doubled up on here. this is not a trial, i think you can handle it, mr. sadow. >> this is -- i'm just going to be on one specific point, not duplicate the argument made before. i believe defendant trump fundamentally misunderstands the role of an overact in a conspiracy case. as we've discussed many times

previously, this is rico conspiracy case, and so we heard mr. sadow discuss various overt acts and say this is just a tweet. this is just a phone call. this is just x. 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 extensively in multiple briefs, that's not true. the purpose of an overt act is to show that the conspiracy is an 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 in an order that's i think 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 -- it could be legal conduct. it could be first amendment

protected conduct. that also shows there's a conspiracy in operation, and that's -- 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 we can cite it to you that said an vert act can involve first amendment activity. its purpose is not to be something that is separately charged here or subject to a separate sentence. its purpose is to show that there is a conspiracy and it's in operation. georgia requires one overt act by any one defendant. so of course the rico 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 rico statute and the manner in which it functions, it doesn't matter whether that's first amendment conduct or not. i mean, we have -- 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, 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. employed. i'll give you a couple 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. >> that 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 some 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 that was made about if it were true, we could still use it as an

overt act suggests that they could 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. being back to what was said in addition by the state, what the state claims is criminal here is lying to the government. that's what it 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, and 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 is able to pull things up and help me inform the court, until the computer shuts down. in looking at what haley says just to give you an idea how the georgia supreme court looks at this. there's a quote, and it says while there is no constitutional value in false statements of facts 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 amendment 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 head of the executive branch. there is references to this in brown r. hartlidge, a well publicized yet bogus complaint on election eve raises the concerns -- that is raises the concerns that you may have some impact that would affect an election, but the preferred first amendment remedy of more speech not in forced 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, it is the essence of self-government, and that comes from garrison 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 intent, when does the court determine that? do you >> do you determine that after we have a trial? that is sufficiency of evidence. that is a whole question. do we go through the whole trial, copper be at there should be a conviction and then

we go back to trying to determine as applied. i am suggesting the reason why we do not get to a trial is because it is unconstitutional to force an accused, be it the former president or anyone else to stand trial are protected speech. i think that is what alvarez and the progeny previous to that and after say. >> all rights. do you need a minute or can we get started? okay. just teeing this one up, i know there is a good bit of your motion that goes back into a lot of ground that i think we covered. >> well, let me start off with some good news. i see the smile on the courts face. our general and specific

timber, 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 have not ruled on it yet. >> i am not going to re-plow background. the court is aware of the government's position and it would probably ruin mr. floyd's day not allowing him to get up and go back over his rico expertise. i am not going to do that. what i would like to do is move forward to some areas that i do think, and the question is when the court says do we want oral arguments today or not? and then on the rico thing, i

think if it was just the rico component i would've said fine, let's do it on the papers. but i have some other things that i want to talk about and have the core focus on as it relates to some of the other aspects of the special and general demur. to focus on that in this way. i want to talk about some of the accounts, the perjury, the false statements. and also to raise this issue with the court. we argue in our pleadings the defendant still filed additional motions on this issue and did a very good job in a lot of his arguments. we know the court granted the

stay and thus had that not happened mr. beaver would be here with me talking about these issues. i think the pleading address to a lot of the issues that were raised in the response by the state. with the forgiveness hopefully of my dear friend, mr. beaver, i am going to mention some of the things they mentioned. i would hope on behalf of the defendants the court may listen to what i say, but also prior to ruling on these particular issues, my for the defendant the opportunity to have his own oral argument date to more fully address these issues. i would appreciate that on his behalf. let's get onto it. we are talking about impersonating a public officer charge. when we talked about that we

talked about whether or not -- >> impersonating a public officer, right? >> count eight, we say that is subject to dismissal. in that pertinent part says on october 14th on or about december 2022, unlawfully and falsely help himself out as the duly elected and qualified presidential electors in the state of georgia, public officers with the intent to mislead. what we did in our pleading is we said, well, that is defective. under the statue 21-51 there is no reference to a presidential elect were as being public officers. therefore that should carry the day. the states response says well, not so fast.

we've got cases here that talk about situations in which 215.1 doesn't carry the day. >> not only cases, you are pulling back from the ethics statue. i am not really sure why i didn't look at that. that's just kind of one of those hanging question marks, i suppose. >> i am not going to argue that. they cite cases where there are individuals impersonating agents, police officers, or agents for metro atlanta human trafficking task force. that falls under that category. trafficking or a federal agent, those are things the state responds to. in the motion, it covers some

of the issues the court may have regarding this issue of public officer and why we think we should prevail on this as well. again, hoping mr. beaver has his day. >> i have kind of put the still motions in the box. make those arguments for me. >> i'm going to, i'll give you the flavor. the flavor is in the still motion which we adopted after it was filed it talks about how other case law in georgia, first of all 1610.23 doesn't define public officer. so we have that out there. it does not define a public officer. the still pleading the essay the issue of what who is and is not a public officer is addressed in other contexts in

georgia law. usually in the proceedings were someone is trying to find out the legitimacy of someone holding a particular office. in that context, there are cases in the still pleading that address the very matter. they cite brown versus scott and a case whether or not an individual has designation or title given to him by law or exercises functions assigned by the law. the inquiry does not end there. the georgia supreme court has noted the term public officer involves the idea of tenure, duration, emoluments and powers as well as that of duty. that is mcduffie -v- ferguson.

that has to do with grand jurors. when someone says it is a grandeur, is a grandeur a public officer? the court breaks down an analysis saying not really, because grand jurors may only meet for a few days. they are not essentially they are for some sort of duration or tenure. they do not take the same oath of office as prescribed for public officers. they lack the element of tenure and duration which must exist to qualify as a public officer. >> how would that apply to a purely fictional task force? >> let's forget the purely fictional task force, that case law from our supreme court how it applies to our case is the

presidential electors are not people who have lengthy tenure and duration which must exist. frankly their job is to me for one day. >> i see your framework, but if the framework is actually whereas the metro atlanta human trafficking question doesn't even exist. if someone is pretending to be an agent. we might agree to disagree here. i think when someone says i am an agent of enforcement of the law for and then names a particular entity that doesn't even exist, they are pretending to be a peace officer. they are pretending to be an agent for the government, which by the very nature of the job would have tenure, what have responsibilities and fall