Georgia judge dismisses two more charges Trump faced in election case

An Atlanta-area judge has thrown out two more charges facing former president Donald Trump and a third against several of his allies in the sprawling election interference case that accuses them of criminally conspiring to try to overturn the 2020 election in Georgia.

Fulton County Superior Court Judge Scott McAfee stopped short in two rulings issued Thursday of dismissing the entire indictment, which Fulton County District Attorney Fani T. Willis (D) sought more than a year ago under Georgia’s anti-racketeering statute. All the remaining defendants, including Trump, still stand accused of engaging in a racketeering conspiracy for their alleged efforts after the 2020 election.

McAfee had previously dismissed three other charges against Trump and others. Trump now faces eight charges, down from 13 in the original indictment.

The rulings come at a time when the fate of the Georgia case is in question.

The case became mired in controversy earlier this year, when Trump and other defendants accused Willis and the lead prosecutor on the case of misconduct related to their romantic relationship. McAfee declined to remove Willis or her office from the case, a decision that the defendants have appealed. The entire case has been essentially frozen since June.

In Thursday’s ruling, McAfee dismissed the three charges under the supremacy clause of the U.S. Constitution, which prohibits state prosecutions of activities that fall under federal jurisdiction.

“The Supremacy Clause declares that state law must yield to federal law when the two conflict,” McAfee wrote.

The charges in question – filing false documents, attempting to file false documents and criminally conspiring to file false documents – primarily relate to the meeting of 16 Trump electors on Dec. 14, 2020, to cast electoral votes for the incumbent president even though he lost the state. The electors signed certificates that were mailed to the National Archives, Congress and federal court, actions that Willis said amounted to forgery.

“President Trump and his legal team in Georgia have prevailed once again,” Trump’s lawyer in the case, Steve Sadow, said in an email.

Jeff DiSantis, a spokesman for Willis, said the office is “reviewing” the ruling and declined further comment.

One issue that is likely to become a focus of any appeal is that McAfee’s ruling effectively declared Georgia’s statute on filing false documents unconstitutional to the extent that it applies to actions in federal proceedings.

The statute in question reads, in part, that it’s a crime to “knowingly file, enter, or record any document in a public record or court of this state or of the United States knowing or having reason to know that such document is false.”

McAfee ruled that because filing false documents in federal court is subject to sanctions under federal law, state law cannot be used as it was in one of the counts he dismissed Thursday. That count relates to the filing of a lawsuit in federal court in late 2020 seeking to reverse Trump’s defeat in the state, which included numerous false allegations that fraud had tainted the presidential result.

McAfee had been asked to dismiss the entire indictment under the supremacy clause, and he declined to do so, because he said the standard is lower for the “overt acts” that can be used as evidence in a racketeering case.

McAfee was technically ruling only on two of Trump’s co-defendants – John Eastman, a lawyer who advised Trump and his allies on how he could prevail during the counting of electoral votes on Jan. 6, 2021, and Shawn Still, one of Trump’s electors who convened at the Georgia Capitol the previous month.

That’s because the seven other defendants charged under the three counts that McAfee dismissed have successfully stayed the case pending their appeal of McAfee’s decision about Willis.

Thursday’s ruling will apply to those defendants if they lose their appeal. They include Trump, two other Trump electors, David Shafer and Cathy Latham, as well as four campaign allies or lawyers: Rudy Giuliani, Robert Cheeley, Ray Smith and Mike Roman.

Separately Thursday, McAfee rejected a motion from Eastman and Still to toss the entire indictment on the grounds that it relied on an overly broad reading of the state’s racketeering statute.

McAfee’s rulings came six months after he dismissed three other charges against Trump and some of his allies related to a pressure campaign that the former president and five of his co-defendants put on state officials to change the 2020 results in Georgia.

In his March ruling on those counts, McAfee agreed with lawyers for Trump and the others that prosecutors had failed “to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited.”

As he did on Thursday, McAfee also denied motions to throw out the entire indictment. Fulton County prosecutors have appealed McAfee’s March ruling.

McAfee said his Thursday decision has nothing to do with the Supreme Court’s decision related to Trump’s federal election interference case in Washington, which granted him partial immunity for actions taken in his official capacity as president. But the judge appeared to leave the door open for immunity issues in the Georgia case, saying they “have not been fully briefed or argued by the parties.”

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Bailey reported from Atlanta.