Left: Donald Trump speaks at the annual Road to Majority conference in Washington, DC, in June 2024 (Photo by Allison Bailey/NurPhoto via AP). Right: Fulton County District Attorney Fani Willis arrives during a hearing in March as defense pushed for her to be removed from the case over a relationship with Nathan Wade, a special prosecutor she hired and who later resigned (AP Photo/Alex Slitz, Pool).
The Georgia judge presiding over the 2020 election subversion case against Donald Trump and his allies dismissed two charges against the former president on Thursday while leaving the top RICO count untouched, but a footnote emphasizing the issues that decision “does not reach” shows a much larger fight looms large.
Fulton County Superior Court Judge Scott McAfee, who previously tossed out other charges, made his latest ruling on the motions of co-defendants John Eastman and Shawn Still, decided that three counts (14, 15, and 27), two of which Trump faced, had to be “quashed” because the “United States Supreme Court’s decision of In re Loney, 134 U.S. 372 (1890) preempts the State’s ability to prosecute perjury and false filings in a federal district court[.]”
At the same time, the judge wrote that the “indictment is not barred entirely” by the Supremacy Clause of the Constitution, since the “subject” of the charges is not “so inseparably connected to the functioning of the national government[.]”
Some legal commentators reacted to the ruling by either opining that McAfee was either “probably right” or may not have been but ruled on an issue where legal experts can reasonably disagree, but they emphasized the RICO case as a whole has thus far survived.
McAfee’s ruling tossing three of the counts is actually carefully reasoned & probably right based on an 1890 Supreme Court case. But the most important thing he did today is the separate ruling upholding the core state RICO charge. On balance, not a good day for the defendants.
— Harry Litman (@harrylitman) September 13, 2024
Georgia State University Law Professor Anthony Michael Kreis, for one, told the Atlanta Journal-Constitution this was “always a difficult matter because there is no federal law that necessarily preempts the ability of states to prosecute individuals for misstatements to federal authorities that have a direct relationship to state election law processes, especially when those statements relate to false assertions that are tantamount to impersonating a state official.”
“At the same, it’s highly unusual for a state prosecutor to charge someone for unlawful statements made to the federal government,” Kreis said. “There’s a strong viewpoint that the state shouldn’t be able to criminalize conduct within the federal system because it potentially interferes with national affairs.”
The Eastman and Still decision, in short, also impacted Trump’s prosecution in a limited way even though the case as to him is on hold indefinitely as he pushes for an appellate court to disqualify DA Fani Willis (D) for her “incendiary racial rhetoric.”
In the meanwhile, Trump’s team is calling the dismissal of two counts a victory.
“President Trump and his legal team in Georgia have prevailed once again,” Trump defense attorney Steven Sadow said in a statement to Law&Crime. “The trial court has decided that counts 15 and 27 in the indictment must be quashed/dismissed.”
A footnote from the judge pointed out, however, that there is still a fight lingering in the background, an issue that McAfee has not yet ruled on in light of Trump v. United States, the Supreme Court immunity case that has complicated each of Trump’s three other criminal cases in various ways. The judge said his order “does not reach” those issues because they haven’t yet been “fully briefed or argued”:
Defendants further argue the indictment is improper under presidential and federal officer immunity. See, e.g., (Still Doc. 51, 10/2/23) (adopting in part Shafer Doc. 46, 9/27/23)); (Still Doc. 77, 1/8/24) (adopting Trump Doc. 104, 1/8/24)). This Order does not reach these issues nor the United States Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024) as they have not been fully briefed or argued by the parties.
That will be a space to watch moving forward.
Read the judge’s ruling here.
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