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March 28, 2024 - Viva & Barnes
02:14:10
Georgia RICO Hearing LIVE COMMENTARY! 1st Amendment Rights VIOLATED? Viva Frei
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Time Text
What's Joe Rogan's dream?
What's Joe Rogan's dream?
Joe Rogan, Dana White.
What's Dana White's dream?
Did you just think I was Joe Rogan?
I totally did.
She just called me fucking Joe Rogan.
You thought I was fucking Joe Rogan?
Yeah, I thought you were Joe Rogan.
I was bald before Joe was ever bald.
I know, I know.
She did a two-hour fucking podcast.
I flew here from Vegas, and she thought she was interviewing Joe Rogan.
Jesus.
What's Joe Rogan's dream?
This is funny.
I'm not even talking about her.
This is funny.
What's Dana White's dream?
Did you just think I was Joe Rogan?
I totally did.
Just call me fucking Joe Rogan.
I want to believe this.
I thought you were Joe Rogan.
I was bald before Joe was ever bald.
She did a two-hour fucking podcast.
I flew here from Vegas and she thought she was interviewing Joe Rogan.
Oh, it's embarrassing.
It's embarrassing, but it's funny.
And she handled it well.
I forget her name.
Seems like a good person.
Holy crabapples.
Let he who has never mistaken someone's name before cast the first stone.
Good morning, everybody.
We're going to have a hearing today.
We'll see how exciting it is.
I don't know that it's going to be that exciting.
And the dog just meanders in, opens the door, doesn't close it behind him.
A little bastard.
Hold on one second.
Ah, closed that door.
Doink!
Oh!
Oh.
We're gonna have another one today.
Get the hair out of here.
Today is a hearing in front of the RICO court, in front of Scott McAfee.
Georgia RICO court arguing First Amendment violations.
In the Rico prosecution.
It's going to be fantastic.
Yeah, the dog just nudges the door open.
Doesn't close it behind him.
Bring on the fanny.
So, as far as I know, a bunch of people are going to be streaming this.
Hopefully it starts at 10 o 'clock.
Govea has to be streaming this.
Watching the Watchers.
Good Logic has to be streaming this.
Good Logic.
The following pro on Twitter.
I'm not not streaming this, for goodness sake.
What else was I going to do?
I was going to stream and just, you know, rant and rave, but I think we'll learn together.
So for those who don't know what's on the roll today, there's a number of things that say demeurer.
Demurer, I know it's from French, and I know French, demeurer in French means to remain in place, but this is a demeurer, like an estoppel type thing, like, oh, you can't bring these charges because they're violative of First Amendment rights, political speech being among the most important of First Amendment freedom of speech rights.
And so they're seeking the dismissal of the indictment on the basis that it violates First Amendment rights of Trump and others, specifically as it relates to political speech challenging the elections.
Here, I'm going to go with a hard prediction on this one that I think I'm going to be right on.
I've read through the motion and will skim through, not the motion, the post-hearing supplemental brief that Phil Holloway flipped my way.
Phil was on yesterday.
We were talking about this and other stuff.
I don't see this going anywhere, and I don't see the judge dismissing the indictment on First Amendment violations for reasons which may be stupid.
They may be ignorant and naive.
I'm a former Quebec attorney.
I think I understand a little bit of the system.
The idea is, let me bring up the PDF, which I've shared in our Locals community, vivabarneslaw.locals.com.
Are we on the document here?
This is the document here.
So we scroll around here.
It's the post-hearing brief in support of President Trump's adopted demureurs and motions raising First Amendment as applied challenges.
Do you all remember that indictment?
What I call the steaming pile of judicial dog poop of an indictment?
If you don't remember it, I don't have quite the beautiful mind map system that Govea has.
But what I've got, I like.
The old simplistic one computer and we toggle back and forth.
This was one of the charges.
One of the acts.
Sorry, not the charges.
Because you have your charges and then you have your underlying acts.
This is one of the underlying acts in support of some of the charges.
This particular charge, this charge of the indictment was dismissed by Scott McAfee a couple of weeks ago.
But I just want to read it because these are the acts that they allege were part of the RICO conspiracy racketeering.
Racketeering influence corruption.
Racketeering intimidation corruption offenses, I think.
On or about the 17th day of September 2021, Donald John Trump committed the felony offense soliciting a violation of oath by public officer.
That charge was dismissed because it didn't sufficiently specify which provision of the oath, the Constitution, or the state Constitution they were alleged to have solicited the felonious violation of, but whatever.
By unlawfully soliciting, requesting, and importuning Georgia State Secretary Brad Ratfaceberger, an officer, to engage in conduct constituting the felony offense of violation of oath, yada yada.
By unlawfully, quote, this is what Trump said, decertifying the election or whatever the correct legal remedy is, dot dot dot, and announce the true winner.
Okay.
That was one of the charges.
Now you can understand the argument's going to be, dude, at First Amendment political speech, I am simply challenging the outcome of the election as I'm within my rights to do.
Raising what I believe to be allegations of acts of potential impropriety, fornification.
And now my words, my speech became the basis of RICO prosecution.
And we seek to have that dismissed on the basis that, I mean, this is sort of like, in a sense, an anti-slap.
Like, you're criminally prosecuting me for participating in the public process.
And if we go to the brief, which is the supplemental brief.
And it was on page three that I thought we got a good summary of it.
Here we go.
The offenses alleged against President Trump involved five distinct areas.
The elector certificates sent to Congress.
The request made of the Georgia Speaker of the House to call a special session, the verification attached to a lawsuit challenging presidential election, the call placed to Georgia Secretary Brad Ratfaceberger on January 2nd, 2021, and a letter sent to Ratfaceberger on September 17, 2021.
The RICO count alleges a broad conspiracy related to what Fulton County prosecutors wrongfully to be an unlawful, quote, attempt to challenge the results of the presidential election.
All based on speech and all based on words.
So my rationale, reasoning behind all of this is I don't know how they're going to get it dismissed at this stage where a judge is going to say, yeah, that was just speech and protected and therefore you can't possibly face any charges for it because hypothetically there's a number of examples of pure speech which is not protected by First Amendment and that's sort of you have to enter into a substantive assessment.
Although, now that I speak out loud, maybe this is the type of substantive assessment that's submitted to a judge and not to a jury.
All that I can say is I just see it being too easy for the judge to say.
I can think of any number of counts of speech that are not protected by First Amendment and feloniously trying to solicit the violation of an oath.
I can't determine that right now on a summary basis to dismiss it, so you'll have to go through the process.
Racketeering is what Fannie, James Smith, and the White House are guilty of, among other crimes.
Danielson, Danielson, I very much agree with you.
A thousand, thousand percent.
They are the ones who have engaged in, you know, racketeering, broad intimidation.
I mean, literally.
Fannie Willis literally intimidated Jocelyn Wade to leave her alone, to not subpoena her in the context of the divorce.
Nathan Wade, Fannie Willis, literally got involved in racketeering.
With the White House to collude, conspire, to come down with this election interference fornification plot.
So we'll see where it goes.
Now, I've got on the backdrop here, I'm looking for the best place to look at this.
I've got Judge Scott McAfee's YouTube channel, which I've subscribed to, or I should say, to which I've subscribed to speak good English.
I'm waiting on another channel with MSNBC to see who's going to do it.
We're going to probably be live across platforms today.
We're on vivabarneslaw.locals.com.
Yep.
No, do I see us there?
Hold on a second.
Yeah, I see us there now.
Okay, good.
I see me.
I see me.
We're live on vivabarneslaw.locals.com.
I'll give everyone the link there.
I'm going to come to some chat in a second.
Link to Locals.
Bada bing, bada boom.
Are we live on Rumble?
We're live on Rumble.
Ginger Ninja is in the house already with a Rumble rant.
Gotta put the hard H in it.
Wasn't that the journalist that Shail Sonnen asked to touch her hair?
If I remember right, she seems like an actual human.
As far as I understand, she lost her job for not submitting to the jab, if I'm not mistaken.
All that to say, it's mortifying to have someone out there like...
I know people cry racism if you say anybody of an identifiable minority race looks like someone else.
It's so stupid.
If you're going to say, hey, you look like this, that's racist.
You're never going to accuse Brad Pitt of looking like Eddie Murphy.
You're never going to mistake in those two categories of people to say, oh, one looks like...
But it's not anything controversial to say Joe Rogan and Dana White have some distinct similarities.
Throw in Howie Mandel in there, but...
You know, Dana White and Joe Rogan are way more buff than Howie Mandel.
They got very similar features.
I can look at both of them and make that mistake.
So I forgive her.
It's funny.
And my goodness, the way she tried to cover it.
Joe Rogan, Dana White.
Come on.
Oh, and then the way Dana White dealt with it.
That's funny stuff.
It was so funny and it was so dealt with well that I thought it might have been a shtick.
But apparently she called him Joe at the beginning of the podcast as well.
All right, so we're going to be live on all three platforms.
Now let's just see.
The heck was that noise?
That was my phone.
Okay, we're refreshing.
Waiting on MSNBC.
I'm going to refresh Judge Scott McAfee's.
Oh, we got on Scott McAfee's.
Boom.
Oh, Scott.
Criticize him all we want.
At the very least, he's technologically...
All right, we are back on the record with 23SC188.
947.
Makes his hearings public.
How's the audio level between all of us?
I'm hearing today for argument on a couple of the still pending motions that remain.
And so if I could first have counsel who are present here arguing today, starting with the state, identify themselves for the record and if their clients have waived their presence.
And I'll talk over this while they do this.
Remember, the judge said I can continue to hear other motions while I certificate this for immediate appeal.
I'll be presenting to any discussion the court wants to have on First Amendment issues.
Joined today as well by John Floyd.
Will Wooten and Desha Young.
All right.
Thank you.
There's a noise coming in.
Morning, Your Honor.
Steve Sadow and Jennifer Little for President Trump, and he waged his presence.
Morning, Your Honor.
Craig Gillen, Anthony Lake for David Schaefer, and Mr. Schaefer waged his presence.
All right.
Thank you, Mr. Gillen.
So we had a follow-up from our December hearing on focusing on the First Amendment grounds.
As I took it, the focus of that was more kind of on the Maybe perhaps the procedural posture of how the analysis should be applied.
But if you want to get back into the merits a little bit, you can feel free, Mr. Seydal.
But the floor is yours.
Your Honor, may I remain seated and speak into the mic?
That's fine.
Thank you.
I think the first thing the court has to address is whether or not a First Amendment constitutional as applied challenge is ripe for pretrial consideration.
Being candid with the court, if the court says it's not ripe, Then making the rest of the argument is probably not the right time.
On the other hand, we have already argued under Hall, and there's been other cases cited, that as long as we agree to, for purposes of motion, the facts, not other allegations, but the facts, it is right.
So I almost pause it back to the court whether or not we're in that posture.
And we can do a little...
Quick ping-pong here, if we need to, just so we know what the guardrails are.
He's been listening to me.
So I take a closer look at Hall, and I think there's a follow-up case.
I think it was Boyer, maybe Bayer.
I forget what it was called.
And certainly, they're going right at it as an as-applied challenge.
There's a little language there I wanted you all to kind of give me your take on, where I think the quote was, it's well-established that vagueness challenges to statutes which do not involve the First Amendment freedoms.
Must be examined the light of the facts at hand.
And so if you take the inverse of that, it almost makes it sound like you should not be considering First Amendment challenges as applied.
So I'm curious your take on that.
But setting that aside, I mean, it certainly seems in other jurisdictions, as applied, First Amendment challenges happen all the time.
And so it could just be that we haven't actually had the opportunity here in Georgia to address that on the merits.
I don't know.
But what...
Also seemed clear, even reading Hall, that if we're making an as-applied challenge, we're within the confines of the indictment, because unlike Hall, the state hasn't said, here are some additional facts that we're willing to stipulate to or concede to or anything like that.
Any and all of that?
Any reactions?
TJ, if you want to hear this without commentary, go to Scott McAfee's page.
I understand the court should look at the inverse, but I think, as written with all the justices agreeing, that...
It is a First Amendment challenge, would be right, a constitutional challenge on the First Amendment grounds, as long as we accept all the well-pleated factual allegations in the indictment and don't go beyond those.
Now, as the court has indicated, the state at this point has not set forth or stipulated to any other facts, although I think some of them, for example, the fact of how a letter gets to the Secretary of State or a telephone call.
That is an issue.
I think those things are clear throughout the record in this case, but I'm not sure that they're necessary for the court to make an as-applied challenge.
And as such, I think we can be limited to the well-pleaded facts, both in the RICO count, count one, as well as the other counts in the indictment.
Well, let's just start there.
Mr. Wakeford, any reactions to some of those things I brought up and Mr. Sado's response?
We'll annoy the court if I actually come to you.
You can stay wherever you'd like.
I think we've got to start with Hall, Your Honor, and I'm glad you pointed to that language because that was going to be the first thing I wanted to address today.
Hall descends from a case called National Dairy, which the language in Hall says in cases like this, we're confined.
We look at the charge conduct.
That's what we look to.
And Hall, of course, was...
They looked outside of the charging instrument to these other facts.
Yeah, so it seems like that's not going to be an issue here because the state's not saying here's our entire theory of the case.
So what stops us from doing an as-applied first-minute challenge just based on the indictment itself?
That's a limited one, and you kind of have a leg up since you get to put whatever you want in the indictment generally.
Well, and that's kind of the thing, is that when you look at the posterior hearing brief from the defendant, you actually look at footnote 2. He's not actually asking the court to look at it.
Ethical, well-pleasing allegations in the indictment.
He's actually asking the court to read out certain words, all of which have to do with intent.
So footnote two on page two, he says, if it says something's unlawfully or knowingly or willfully done, that's not a factual allegation the court should consider.
So the suggestion seems to be, oh, let's look to Hall.
Hall says we can play kind of fast and loose with what the facts are.
And in this case, what we want the court to do is read out certain language from the indictment, actually not consider it.
Let's say we don't get to that further step and we are just getting over that threshold, even if there was no footnote two.
Any position at this point on can we make an as applied First Amendment analysis of this?
So.
So, it's true in federal courts.
It's kind of all over the place.
Some courts explicitly stay away from it, and other courts go into it.
We know that in this...
In this defendant's case in D.C., actually Judge Chutkin explicitly went forward 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 fact finder for a jury.
And looking at all the cases that you found, ones that didn't do it.
I know generally they're going to say, we don't have the record, we don't have the facts.
But were there any that explicitly said, even though I could just look solely at the indictment, I'm still not going to do an as-applied challenge?
Well, I think that's how we get to a case here in Georgia.
And it's a case, Your Honor, cited back in October when you explicitly ruled, we're not going to get into this.
Trying to wait for a moment of silence.
I'm talking about the major case, which is a Georgia case.
The major case is where they say, okay, 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's really talking about.
And when you look at what the defendant wants to argue about here today, it's just saying, well, I was talking, I was just a guy saying things.
I was just advocating.
I was just speaking my mind.
That's right.
And so all of this is protected, and therefore the entire thing has to go away.
That's a pretty good argument.
I think that's your strongest argument on...
As applied.
We're in the analysis of the as-applied challenge.
I'm still just trying to get over and really understand the procedural element of it.
Well, and that's what Major says, is that 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 the as-applied challenge can succeed at this stage because there's still questions that have to be answered.
But Major, I think that was like an overbreath.
On terroristic threats, right?
It begins with overbreadth, but then it moves into an as-applied challenge.
That's the last part of the matrix.
Did they actually say premature or did they 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 an as-applied challenge?
It's just 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.
And so 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.
And 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 of the speech is pled as integral to criminal conduct, and therefore it's not protected by the First Amendment.
You could envision an indictment.
I don't remember if Alvarez was a post-trial or pre-trial thing, but you could envision an indictment where...
Perhaps they drafted it to solely target speech because of its falsity or something like that.
So maybe there's a use for an as-applied challenge in that kind of a situation.
That's a fair point, Your Honor.
It's just not the situation here.
And it's not going to be the situation in almost any case.
That was a special case where, of course, you have a very unique statute that was punishing.
But that was really a facial challenge, too, because it was saying, like, this is just punishing falsity for falsity.
Unconstitutional on its face.
None of the charges in this case.
They 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 fact, 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, Mr. Sadow.
Let's move forward with the idea that we're making an as-applied challenge solely confined to the indictment.
This isn't a facial challenge.
You're not saying any of these statutes are on this face.
Correct.
Unconstitutional.
Okay.
And your argument is that this is core political speech.
Correct.
Then you get to the fraudulent intent.
How do you argue away from that?
Some crimes can be achieved solely through speech, though.
Exactly what I said.
I'm feeling smart already.
Threats, solicitation.
Why is that not what's happening here as alleged?
Well, good question.
I think it requires kind of a detailed analysis, so if I may.
Sure.
It requires allegations of intent.
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, protective speech.
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.
He's going to say there's fraudulent speech.
There's incitement to break oaths.
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, one 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 important because even when you talk in terms of, and I'll start with...
Go on.
Did I just do something?
We're looking at the majority.
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.
So now we're talking about two people still on the court.
And I'm looking specifically...
Does everyone understand the difference between a facial challenge and the as applied?
Facial is the law itself is unconstitutional on its face.
In which the court goes on to say...
Were the court to hold that the interest in 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 sensorial power unprecedented in this court's cases or in our constitutional tradition.
So 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.
The government's position would be with the state's position with truth.
Moving beyond Alvarez, that part of it.
These moments of silence I find very scary.
As applied means the law is fine, but being used to go after a constitutional law.
And here, I think, gets to the crux of where we are.
And this is the concurring opinion.
And facial challenge means the law is unconstitutional.
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.
But that's not what the concurrent says, and that's not what the dissent says.
The concurrent says, basically...
That these judicial statements cannot be read to mean no protection at all.
False factual statements can serve useful human objectives, for example, in social contexts where they may prevent embarrassment, da-da-da-da-da, in public contexts where they may stop or panic in the face of danger, and even in technical, philosophical, and scientific contexts where, as Socrates' method suggests, examination of a false statement, even if made deliberately to mislead, Can promote a form of thought that ultimately helps realize the truth.
And then it goes on and says, So this is the proposition that it's not the falsity alone that controls.
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 that I think you say in your brief, that it's unlawful, willful, and knowingly false?
Because those are legal findings.
Our position, President Trump's position, is those are words that 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 Valorant.
You allege they're guilty.
Just because they allege that it was unlawful doesn't mean it was.
It doesn'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 and not, you know, it's not a, right?
So we put legal conclusions and indictments all the time.
I think that's going to be part of Mr. Schaefer'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 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 acts, you look at those overt acts, and then...
Those at the same time and then look at the substantive offenses or conspiracy offenses in the rest of the body of the indictment.
Uh-oh, sorry, hold on.
At least that's our position.
So now we're talking in terms, going back to Alvarez and the recurring opinion, we're talking in terms of falsity alone is not enough.
There are situations, contexts which override just the falsity alone.
How's the audio?
Is it too high?
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 when 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.
I love SATA.
Like the loving father.
But I believe it starts at page 751.
And it says...
Even where there is wide scholarly...
This is 752.
Even there...
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 about the clear perception and livelier impression of truth produced by...
It's 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 what President Trump said speech-wise 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 and the dissenting 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. That's what the rebuttal is going to be.
Basically, what the state's position is on that, because it took this position previously in its filing on September 27, 2023, in response to that which was filed by Chesbro.
And I'm aware, of course, of the court's order that dealt with Chesbro, and it didn't deal with the as-applied.
So I'm dealing...
And more so in 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 its order, at that point it didn't determine that it was right for a pretrial challenge.
I'm taking what Chesborough, what the state said, as it applies now, because it says in that brief that it was both as to facial and as applied challenges.
Essentially what it says is, as to those counts, 9, 11, 13, 15, 17, 19, as to 9, 11, and 17, the mere fact that it alleges a fraud is enough.
That is.
That's what's on page 5 and page 6. Since 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.
There's not a finding that the speech itself, beyond the speech itself, is fraudulent.
What the state wants to do is say, we have a goal.
An objective here that we have put forward.
Steal the election in an unlawful fashion.
I say change that for a second to legitimate concern about the validity of the election.
If that was the way you focused on it, which is a way to do it as applied, even with the facts, would what President Trump said on those counts be a Protected speech.
And the answer is it has to be.
Because the only thing that makes it fraudulent is the state saying it's false.
Take every one of those and say, okay, it's not false.
It's protected.
The only reason it becomes unprotected, in the state's opinion, is because they call it false.
And that's what Alvarez doesn't allow.
In and of itself, it cannot be simply the content-based.
It has to be contextual.
And the contextual here is a political core value being addressed, elections and campaigning.
And that holds true for all of those that deal with the conspiracy.
And then you deal with counts 29 and 39, which is the false statements charges.
29, just defined it here.
It is clear.
That the Supreme Court would find that a statement made under 1,001, 18 U.S.C., 1,001, would constitute the appropriate, let's say, abridgment or non-protected conduct or speech.
But Georgia statute's a little different here, because we don't have a materiality element.
It's the mere fact of falsity which violates, according to Georgia law, Counts 29 and 39. Yeah, this is too complicated.
You don't have to do anything else to make a false statement.
Even if it is political discourse, even if it is in the heightened context that I've suggested, if it's false, it's a violation of the law.
And I'm saying as applied to political speech, that can't be constitutional as applied.
The way it's crafted.
No materiality.
Simply the fact that he said it.
So essentially, what the state's position on that would be, it didn't have to be sent to anyone of consequence in the state agency.
It just had to be said.
Indeed, if you look at, and the most and probably best example is count 39, that's a letter.
Written after the election in September of 2021 from President Trump to Secretary of State in which it has, according to that, one statement.
And that constitutes, according to the state, falsity.
But it's clearly political speech.
And it's clearly being related to the activities and the matters that...
Of election and campaign, even after the fact, it's still related just to that.
That was a memorandum from Shiro.
Looking at 29 and 39, I think you have a situation in which the falsity alone is all they have as applied here to political speech.
It is unconstitutional as applied under the First Amendment.
And then finally you have count 27. Quick question on that.
I hadn't located one.
Had you found a...
Anyone ever attempted a facial challenge on 161020?
Yeah, in fact, I don't remember the name of the case, but it has been upheld, even though there was references to the fact that maybe materiality should be part of it.
That's got to be the Haley case.
That's right.
That's right.
Yes, facially, yes.
But Haley, of course, didn't go to the extent of trying to determine as applied in a particular context.
And it's, again, Don't repeat what I just said, but here we're talking about the heightened value of core political speech.
And then with 27, we're talking about the filing of a false document.
Again, the only thing there that involves President Trump is an attestation on the complaint.
Now, all it refers to in the indictment is complaint.
But again, we're talking about the act.
The falsity or the filing of false document is the falsity in the document itself.
And I'm suggesting under the circumstances, that and that alone wouldn't violate that statute as applied.
So regardless of the facial challenges, the question becomes here, is the mere fact that the state says fraud or false statement enough to get by an as applied challenge?
And our suggestion is it is not.
Now let's go to RICO.
Oh, wait, we need a pause.
And I think RICO is more difficult, to be honest with you, because...
We're talking about a much broader statute.
At the same time, when you look at the allegations against President Trump, all of the allegations, all of the allegations involved expressive conduct or speech.
We have false statements alleged in overt acts, and again, all of which are political core value, political discourse.
You have false statements in over at Acts 1, 5, 7, 8, 17, 93, 97, 108, 133, 135, and 157.
The only allegations here are falsity.
There's no allegation beyond the fact that those statements are made.
And I'm suggesting that...
Yeah, heightened political speech has to be looked at differently.
When it comes to tweets, which is, at least the way the state sets it forth, is also political speech.
And here, certainly by the then president of the United States, you have tweets in 22, 26, 27, 32, 75, 100, 101, 106, 114.
128, 138, and 139.
So the majority of the overt acts involve false statements or tweets, which are clearly political speech.
Allegedly false statements.
How best to deal with that under the circumstances?
To prosecute those under a broad RICO charge, supposedly with contesting an election by, I guess, illegitimate speech or expressive conduct, or...
Is the way that we are set up as a country is that the First Amendment plays through this by others, by those that are complaining that it's false, proving it's false, bringing forth the truth.
That's the essence of what Alvarez has said.
That's the essence of what a case called Brown v.
Hartlidge, which is cited in Alvarez.
It's 456 U.S. 45 at 61, a 1982 decision.
All of those speak in terms of when you're dealing with that speech, that political speech, you're best to deal with it through the pushing forth a counter view of truth, not prosecuting the speech maker or the person that is articulating his political views.
We've done just the opposite.
We've decided that because those views were unpopular and in the state's opinion false, we must prosecute them to stop them from happening again, which is, again, the essence of why it's unconstitutional as applied, because that's not what the law says.
Finally, the rest of the overt acts, either telephone calls or meetings or requests, no false statements.
They're just acts, expressive acts.
And they're in there as well.
Those are political acts.
And for the court's benefit, because I know there's a lot of overt acts, those are 9, 14, 19, 28, 30, 31, 40, 42, 43, 44, 90, 95, 112.
Listen, the old indictment is 123.
Paragraph number two is now, I think, is 125.
130, 131, 140, and 156.
156 is my favorite.
There is nothing alleged factually against President Trump that is not political speech.
Double negative.
Everything alleged against him is political speech.
That would be the better, clear way of doing it.
Is the state's position that fraud or false statements under these circumstances, which I suggest really is alone, is that enough?
To get it by an as-applied challenge.
Our position is it's not.
Is there another way to look at this?
They're going to argue at the same time that it's integral to criminal conduct.
But it's the speech that's being punished.
That is the criminal conduct.
If it's not the criminal conduct, there would never be an indictment for the RICO against 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. Sato.
Mr. Wayford or Mr. Floyd, if there are any points that you wanted to address or respond to.
It's too complicated.
Maybe I'll start you off with this.
It certainly seems that the primary case driving Mr. Sato's argument would be Alvarez.
Because that's a fractured kind of plurality opinion, I'm wondering if you have any Thoughts on just how much that can drive this?
And I know the state back in December was also 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 Shotkin in D.C. has evaluated all of these arguments.
Under Supreme Court Presto, already.
Oh, if you know...
So, I want to refer you on to the court's analysis because I'm hardly going to improve upon the findings of a federal judge.
However, speaking specifically to Alvarez, it is a plurality opinion with 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 is not protected under the First Amendment.
And that 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.
But 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 and violations of the law.
It's not just that they were false.
It's not that the defendant has been holding to a courtroom because the prosecution doesn't like what he said.
He is free to say, to say, to make statements and to file lawsuits and to make other legitimate protests.
What he is not allowed to do.
Is what?
Is employ his speech and his expression and his statements as part of a criminal conspiracy.
We understand that, but what?
To violate George's RICO statute, to impersonate public officers, to file false documents, and to make false statements to the government.
That's what he's alleged to do.
He's not charged under 16, 10, 20 because he tells lies.
Although it is very interesting to hear counsel for Mr. Trump tell us about the usefulness of lies.
He's not being prosecuted for lying.
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 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 organization 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, influencing witnesses, computer theft, computer trespass, and on and on and on.
What the defendant is suggesting to Your Honor is trying to get around to the fact that 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.
But 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, is that each of those was employed as part of criminal activity with criminal intentions.
And we finally get to a place where I knew we would end up, which is saying, I believe Your Honor was requested to think about it as, not as lies, but as legitimate concern about election issues.
Well, that sounds like a trial argument to me.
But 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 him 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, but 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.
And he was just the guy asking questions.
And not someone who was part of an overarching 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 impersonating 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?
Yes.
Or is this speech being 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 change the fact that it can be employed as part of criminal conduct.
The mere fact that you're talking about issues of public concern or core political speech, which may be completely fine and protected 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 six to seven of the post-hearing brief, followed by Defendant Trump, which says, The speech integral to criminal conduct exception of the First Amendment does not apply here because 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, 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 the indictment and has to look at the indictment and can't look beyond it, if we're going to get into this at this stage, then there's nowhere to go, as I said at the beginning, because this is all alleged as part of a pattern of criminal conduct and not protected by the First Amendment.
Any argument to the other otherwise is just to try to pretend like that's not true.
Well, this guy's better than the boss.
That's for certain.
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. Saydown.
And I'm just going to be on one specific point, not duplicate the argument made before.
I'll clarify.
I believe defendant fundamentally misunderstands the role of an overt act in a conspiracy case.
As we've discussed many times previously, this is a RICO conspiracy case.
And so we heard Mr. Sedow discuss various overt acts and say, well, but this is just a tweet.
This is just a phone call.
This is just X. The unspoken underlying 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 in 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, I think, that's 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 legal conduct.
It could be First Amendment protected conduct.
That also shows there's a conspiracy in operation.
And 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 maybe we can cite it to you that is said.
An overt act can involve First Amendment activity.
Its purpose is not to be something that is separately charged here, subject to a separate sentence.
Its purpose is to show that there is a conspiracy and it's in operation.
Georgia requires Federico because one overt act by any one defendant.
So, of course, Federico 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, 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. Floyd.
I'll give you a couple minutes.
Final word.
Thank you.
Okay, well, that's it then.
If I heard what Mr. Floyd just said, that if everything President Trump said was assumed true, Then he could still be in the RICO indictment.
He could still be charged.
And therefore now we're talking about true political speech, not alleged false.
He could still be prosecuted for the violation of RICO.
Good point, Sato.
After the Oward Acts, as alleged.
Let's say even the Oward 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.
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 And the fact that it comes from then-president of the United States.
Going 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, because prosecutions chill speech.
And when it comes to political core speech, what you don't want is chilled.
Fortunately, I have a co-counsel that's able to pull things up and help me inform the court until the computer shuts down.
And looking at what Haley says, just to give you an idea of how the Georgia Supreme Court might look at this, there's a quote from Haley, and it says, 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 the head of the executive branch.
there is references to This in Brown v.
Hartwich, and I cited that earlier.
A well-publicized yet bogus complaint on election eve raises the concerns that you may have some impact that would affect an election.
But the preferred First Amendment remedy of more speech, not enforced 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-oppression.
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.
There is no indictment.
President Trump would not be charged Enrico 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 determine that after we have a trial?
That could be the directed verdict stage.
Would it?
That's a sufficiency of evidence.
That's a whole question.
I mean, do we go through the whole trial?
God forbid there should be a conviction, and then we go back to trying to determine as applied?
I'm suggesting the reason it's right now, and the reason why we don't even get to a trial, is because it's unconstitutional to force an accused, be it the president of the United States, former president, or anyone else, to stand trial.
On protected speech.
And I think that's what Alvarez and the progeny previous to that and after say.
Sato is white and Sato is smart.
All right.
Mr. Gilligan, do you need a minute before we dive in or can we get started?
What are we doing?
Another motion.
Okay.
So just teeing this one up.
I know there's a good bit of your motion that...
It goes back into a lot of ground.
I think we covered it at the December hearing.
Well, let me start off with some good news for the court.
I'm happy to hear it.
See the smile already on the court's face.
Our general and specific demur, a great deal of that does go into the areas of RICO that the court has not only ruled on, but heard other arguments.
We haven't ruled on it yet, but it was just talked about continuity.
In October the 17th ruling, it addresses a lot, some of the issues that were addressed.
So I'm not going to...
I'm not going to redo, re-plow that ground.
The court has heard, you know, aware of the government's position.
I know that probably ruined Mr. Floyd's day by not allowing him to...
Get up and go back over his RICO expertise.
I'm not going to do that.
What I'd like to do today is to move forward to some areas that I do think needs to be, and the question really when the court said, do we want to have oral arguments today or not, and then the question was, well, you know, because on the RICO thing, I think I probably could have said, if it was just the RICO component, I would have said, fine, let's just...
I do it on the papers.
You've got a lot of other candidates.
There are some other things that I wanted to talk about and have the court focus on as it relates to some of the other aspects of the special and general demurs and to focus on that in this way.
Number one, I want to talk a little bit about some of the counsel impersonating public officers.
I want to talk about the forgery, the false statements briefly and talk about that, but also to raise this issue with the court.
Now, we argue that in our pleadings, but the defendant still filed additional motions on these very issues and did a very, very good job in a lot of his arguments.
We know that the court granted the stay for Defendant Steele because he's of the state legislature.
And thus, you know, had that not happened, Mr. Beaver would be here with me talking about these issues.
I think that the Steele pleading addressed 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'm going to mention some of the things that they mentioned, but I would hope on behalf of defendants still, the court may listen to what I say, but also prior to ruling on these particular issues, might afford defendants still the opportunity to have his own oral argument day so that he could more fully address these issues.
And I would appreciate that on his behalf.
Let's get on to it.
We're talking about impersonating a public officer charge.
This is the ultimate slate of light.
We talked about that.
We talked about whether or not impersonating a public officer charge, count eight.
We say that's subject to dismissal.
Pertinent part, it says on October the 14th, on or about December 2022, unlawfully falsely held themselves out as the duly elected and qualified presidential electorate from the state of Georgia public officers with the intent to mislead.
Now, what we did in our pleading is we said, well, that is defective because...
Under the Statute 2151, as public officer, there is no reference there to presidential electors as being public officers, and therefore that should carry the day for us.
The state's response says, well...
Not so fast, Mr. Gillen.
We've got cases here that talk about situations in which 2151 doesn't carry the day.
Not even cases.
I mean, the statute itself.
Right.
I mean, you're pulling that from the ethics statute.
Exactly.
I'm not really sure why I'd even look at that.
I mean, public officers all throughout the code, and it's just kind of one of those hanging kind of question marks, I suppose.
So what the state does, and I can see the court's point, I'm not going to argue that.
What I am going to say is that what they say, they cite cases where there are individuals that are impersonating agents, you know, police officers, peace officers, or agents for Metro Atlanta Human Trafficking Task Force.
Okay, that falls into that category.
In the task force or a federal agent, those are things that the state responds to.
Is it better now?
That in the still motion, it covers some of the concerns the court may have regarding this issue of public officer.
Why we think that we should prevail on this as well.
Again, hoping Mr. Beaver has his day.
Well, do me a favor, actually.
I've kind of put the still motions in a box and I haven't opened it yet.
Make those arguments for me.
Well, I'm going to.
But not as articulately, I'm sure, as Tom could do it.
But I'll give you the flavor.
The flavor of it is that...
In the still motion, which we adopted after it was filed, it talks about how other case law in Georgia, when it talks about, first of all, 1610-23, doesn't define public officer.
So we've got that out there.
Not defining the public officer.
But the still pleading does say that the issue of who is and is not a public officer He's addressed in other contexts in Georgia law, usually in the, quote, marito proceedings where somebody's trying to find out the legitimacy of somebody having or holding a particular office.
And in that context, there are cases cited in the still pleading that address this very matter.
They cite Brown v.
Scott.
As a case in which the Brown v.
Scott case, you know, whether or not an individual has designation or title given to him by law or exercises functions concerning the public assigned to him by the law, they cite Brown.
The inquiry doesn't really end there.
The George Supreme Court has noted the term public officer involves the idea of tenure.
Duration, fees, emoluments, and powers, as well as that of duty.
And so that's McDuffie v.
Perkinson, and that has to do really with grand jurors.
So when someone says, well, it is a grand juror, a public officer.
And the court breaks down an analysis talking about that, saying...
Not really, because grand jurors may only need for a few days.
You know, they're not essentially, you know, they're not there for some sort of duration or tenure.
Getting a little bored here.
They don't take the same oath of office as prescribed for public officers.
Get to the point that the impersonation comes from the ultimate state of elect.
The last element of tenure and duration, which must exist to qualify as a public officer.
Well...
So how would that apply, again, to like a purely fictional task force?
Well, I mean, let's forget the purely fictional task force.
It would...
Let's have it...
That case law from our Supreme Court, how it applies to our case, and how it applies to our case is the presidential electors are not people who have lengthy tenure, duration, which must exist.
Frankly, their job is to meet for one day.
I see your framework there, but the framework is actually in this.
Whereas the Metro Atlanta Human Trafficking Force, it doesn't even exist.
Well, it doesn't.
But someone is pretending to be an agent.
Maybe they're part-time.
I mean, it just seems like...
Well, you see, we might agree to disagree here because I think that when someone says, here's my badge, I'm an agent of enforcement of the law and then names a particular entity that doesn't even exist.
They're pretending to be a peace officer.
They're pretending to be an agent for the government, which, by the very nature of that job, would have tenure, would have responsibilities, would fall into the definition that the Supreme Court has given in Brown v.
Scott and McGuffey v.
Pearson as to what a public officer should be.
And so, in that context, we have the same thing, actually.
It popped up again on the issue of Morrissey-Peters, another case, Supreme Court case, dealing with whether or not someone was a public officer.
That had to do with a, quote, warranto against the chairman of the Georgia Democratic Party and whether or not he would fall in as a public officer.
No one was impersonating them.
Like in that case, which found that he was not, like grand jurors and public officials, party officials, presidential electors are not public officials under Georgia law, especially for purposes of 1610-23.
Jobs, services are temporary, like the grand juries.
The position really only arises once every four years.
It's limited to a single meeting on a single day.
So it lacks that element of tenure and duration, which must exist.
It's kind of like back to the political case, Morris v.
Peters case, which dealt with the state party.
Political chairman nominated in accordance with the rules of their party.
But just because the fact that they were nominated by the rules of their party doesn't make them a public official.
So, and like grand jurors, presidential electors don't receive, they're not receiving their salaries for their service.
So all of that, Your Honor, tells us that You know, this particular count is flawed for the very purpose of these electors cannot be, under Georgia law, public officers.
And so, you know, although we agree with the court's initial position regarding the limitation on the definition of public officer in our pleading, Good old Tom Beaver and the still pleading has come forward to rescue us on that point.
And so if you look at what they did, and hopefully Tom will do a better job of articulating those points, in their pleading they talk about...
Specifically, some other cases that get into, and Texas, and I think Utah as well, that deal more specifically with this.
But for the purposes of argument today, I think that we've sort of got the drift on what I think is happening on the impersonation of public officers.
officers.
And clearly, under the direction we believe of our Supreme Court, they could not be so judged.
Now, again, I'm not going to Belabor the bad point.
A whole lot of time up here with the court.
But I do want to touch on a few of the other components of our pleading.
But they weren't impersonating them.
Say that?
Now, you know, we indicated in those counts 10 to 16 are sufficient to dismissal.
You know, writing a check in a fictitious name or manner that the writing has made or altered proportionally have been made by another person.
That's the definition.
What we have here in this indictment is we have an assertion that a writing or other than a check in a manner that the writing has made purports to be made by authority of the duly elected and qualified presidential electors from the state of Georgia who did not give such authority.
Now, that's what they allege.
Let's break that down.
I didn't understand what you just said.
And the states respond to us saying they want to focus on the phrase under the authority.
And what we have here is the concept of what is the authority.
Who is this on October the 14th?
Who was the The duly elected and qualified presidential elector from the state of Georgia who did not give such authority on December the 14th, 2020.
Well, I'm bored.
The answer to that is, as a matter of law, simply as a matter of law, and now we're going back.
Your Honor, there's some of the arguments we've made with the court earlier on the issue of supremacy.
I'll get to that.
This one, I'm confused.
Highlighting some of those points to the court for the purpose of making our point here.
And that is this, that, you know, under the federal law, as it existed in 2020, when the state of Georgia failed to Comply with federal law about having an adjudication of any pending controversy or litigation,
and as we know in the public record in this courthouse was the pending and unresolved Trump and Schaefer litigation on the election.
Now, because that lawsuit was not adjudicated pursuant to federal law, then the state of Georgia lost its ability After Safe Harbor Day, lost its ability to then name who the electors should be.
And as we discussed earlier, and I'll shorten the argument for the purpose of the record, I'll just make the following points.
Once that happens, and it's very, very clear from federal law and from the language from Bush v.
Gore, Yeah, true.
But as it points there, it's like they see it as not even a serious issue.
Because the clear reading of the statute would say, if you don't get it done by, say, Farber Day, then you have lost out.
And once that happens, the power then shifts back to the Congress.
So, as of by law, we think, not a factual issue, by law, on December the 14th, 2020, there were no, there were no duly elected and qualified presidential electors from the state of Georgia because of that failure.
And so, I understand your point, and I don't want to get too deep into it, but since we're in demure world here, Wouldn't your allegation of whether a lawsuit was filed, whether it was pending, none of that's in the indictment.
Doesn't that transform this into a speaking demur?
Well, we don't think so.
And the reason why we don't is the last time I think we quoted the court that the court could take notice of the pleadings within the court system.
And I believe that what we articulated there, and I don't think we had an objection from the state, could be wrong.
But my recollection is we didn't.
And we then work from the framework of, yes, in this courthouse, there was a filing, a pleading, that we're not going, this isn't a speaking to Murr, it's a part of the court record.
Part of the court record says there was a lawsuit that was not adjudicated by Safe Harbor Day.
So we don't have to go outside the indictment.
It's not a speaking to Murr.
And because of that, by applying the law...
These forgery counts, 10 and 16, in our view, must go.
Now, the other case that I would like to discuss is the false statement component.
And on the false statement counts, 12, 18, and 40. To be taken with a grain of salt.
Now, here, the issue here, dealing with a false statement, for example, is when they're asserting that there was a document that was sent within the jurisdiction of the Georgia Secretary of State and the officer of the governor of Georgia departments and agencies of the government.
We've got two arguments to that.
Number one, and again, back to Haley.
Haley talks about this issue, and when Haley talks about it, the key thing is whether or not there was agency with the key phrase with authority to act on it.
Now, there are two flaws, the fatal flaws the state has as it relates to this issue concerning Haley v.
State.
And on the issue concerning the safe harbor.
One, as we mentioned, at that time, there was nothing for the state of Georgia to act upon.
They merely received the information.
It was merely a sort of a ministerial act, if you would.
But even more fatal...
To their argument is the second argument that I made a moment ago, which I won't repeat other than referencing it.
The failure to act by safe harbor date renders any activity on behalf of the state of Georgia, be it the governor or the secretary of state, renders that gone.
Because now...
It's all gone back up to Washington, to Congress, to deal with that.
And the government in the state can't now say or at any time say, well, we're saying that the that the Democratic nominees or the Democratic representatives for the electors, they ultimately became the duly elected.
You don't do that.
You don't retro parachute back into what happened on December the 14th.
The world as we know it, on December the 14th, they were neither Democrat or Republicans that were duly elected under federal law.
And so We believe that the false statement Count should go.
Thank you, Your Honor.
All right.
Someone's going to have to explain to me why my argument is not a better argument.
Okay, any thoughts from the state reaction?
Mr. Wooten, this one's yours.
Just judge.
Let me pick it up on that last point, because I know we've died into some of this, not so much the safe harbor aspect of it and that argument, but the idea that the governor's office and the secretary of state's office just didn't have jurisdiction.
I know you've said that that's an issue of fact needs to be proven, but isn't that also something that could be shown as a matter of law, potentially?
I know you don't agree it is, and so you can cover all that.
Sure, sure.
I don't agree that it's a matter of law.
It is an issue of fact.
And we've briefed this extensively and argued this before.
We believe that even if it's not an issue of fact, even if the court were to consider it as a matter of law, we've given ample reasons why under statute all of these entities have jurisdiction over many of the crimes that are alleged in the indictment.
Many of the topics that, well, all of the topics where we've alleged that some of these defendants have made false statements regarding.
I do maintain that I believe that it's an issue, in fact, for the jury to decide that we have to put up that evidence.
We have to ask the GBI officers, you know, what is your duty?
What is your authority?
What can you investigate?
We have to ask the Secretary of State individuals while they're on the stand, what are your duties?
What is your job?
What do you do?
It might require expert evidence.
Why are these material to areas where you have jurisdiction to do something?
What is your ability to act on these things?
I think all of that has to come out at trial.
And so as it relates to that, I think it's way premature.
And anything that, again, I always go back to the standard for what is a demurrer, right?
Right.
But what I'm saying, just if there was a statute that explicitly, you know, they didn't have jurisdiction.
Remind me, what is it that you're saying, just as a matter of law as a parent, that provides the governor authority over this after the Safe Harbor Day?
Judge, I don't have the indictment in front of me, so I need to know specifically what...
Oh, dude, get the hell out if you don't have any...
I think this is in regard to the certificates or the paperwork where, you know, if an elector doesn't show up on Election Day...
Or on December 14th, that the governor has to ratify a replacement of that person.
I think there were some documents that were delivered by Mr. Schaefer and his co-conspirators to the governor's office trying to get the governor to do that.
That's provided by statute that the governor is the one that has to ratify a replacement.
So, statutorily, he absolutely has the authority to act on that matter.
Okay.
All right.
From the top, I think there's a lot of time spent on definition of public officer and some of the allegations raised in Mr. Stills' briefing, which I think his motion deadline should be coming up soon, so if he's requesting an argument, we'd have him in.
Sure.
But if you want to make any initial reactions.
A well-prepared judge.
This guy is Jack.
Look at his neck muscles.
I've made this statement in the past as it relates to Mr. Schaefer, and I'll make it again, which is we have to address an elephant in the room.
The elephant in the room is that Mr. Schaefer is in the 11th Circuit right now demanding to be recognized as a federal officer.
So what are we?
I mean, are we saying that this position of elector is an officer or isn't?
I think they need to make up their mind there.
But as it relates to, well, I've actually got quite a bit of ground to cover, and I'll kind of take it as it was raised.
That's not what we want to hear.
I want to start with, and again, as we pointed out in our response, we don't believe that the definition section in 21-5-3 applies.
But, Judge, if it did apply, I think it actually supports us.
Because if you look at paragraph B, this is 21-5-3-22.
B, it says public officer means every other elected state official not listed in subparagraph A. So it's a comprehensive definition of any elected state official.
So we believe that that would absolutely cover it to the extent that it's persuasive that it shows that presidential electors are public officers.
That definition says any elected state official.
So they are elected state officials.
I hit briefly on the cases that were raised by Mr. Gillen as it relates to what Mr. Still put in his pleadings.
Prepare to address those.
First, there was an intimation that 1610-23 only applies to police officers or peace officers.
We know that that's not true because of a case called Kennedy v.
Carlton.
That's 294 Georgia 576.
A good retort to a bad argument.
2014 Georgia Supreme Court case where a conviction was upheld for someone impersonating a DFACS employee.
Clearly not a...
A police officer, a peace officer of any kind, so we can dispense with that argument.
As it relates to the cases that Mr. Gillen referenced, you know, the definition of public officer in other contexts, all of those cases deal with the definition of public officer in the context of a petition for Quo Rento.
I believe there's three cases that are referenced in Mr. Still's pleading.
We're following our response to that tomorrow, but I can kind of take them in turn.
Mr. Gillen referenced this list of qualifications in the McDuffie case, tenure, emoluments, duties, etc.
That's not the holding of McDuffie.
So the way that the McDuffie case is structured is the Georgia Supreme Court says no one's ever definitively said what a public officer is in the context of quo or rento.
Well, look, if you're about to file a response and...
Mr. Beaver may be requesting oral argument.
Why don't we just save it for what I've had against it?
Read these cases and then we can be more productive.
Sure, I can skip those cases, but I did want to hit a few points, Judge, as it relates to the statutes that establish that presidential electors are public officers.
First of all...
The actual office itself is created by law.
So it's created by the United States Constitution, Article 2, Section 1, Clause 2, and it's also created by OCGA 21-2-10.
That actually establishes that there is an office of presidential elector in this state.
They have duties that are established by law.
Those are established both in the U.S. Constitution and the 12th Amendment, as well as in OCGA 21-2-11.
By law, they're elected by the public, 21-2-10, and also there was a reference that they don't get a salary.
That's actually not true.
There's a compensation for presidential electors that is set forth by law at OCGA 21-2-13.
Additionally, the election code itself...
Refers to the Office of Presidential Elector.
It refers to it as an office.
In two places in particular, 21-2-132A and 21-2-132E.
And again, we again rely on those cases that Mr. Gillen discussed.
Garrison v.
The State 276 Georgia App 243 2005 case where someone was convicted for impersonating A federal agent, an unspecified federal agent, and that conviction was upheld by the Georgia Court of Appeals.
CERT was denied by the Georgia Supreme Court.
And then the Lubri case where they, of course, impersonate the...
Metro Atlanta Human Trafficking Task Force that doesn't exist.
So we would argue to the court that the definition for 161023's purposes, that our appellate courts have applied a very liberal definition as a public officer.
It doesn't even have to be a real public officer.
It doesn't have to be a state officer.
Anything that purports to be, you know, someone acting by authority of the government is a public officer, and that's certainly what presidential electors do.
Their position is created by law.
Their duties are established by law.
All right, so jumping down to the forgery counts.
Again, elephant in the room.
1691, there's...
At least five ways that you can violate the forgery statute.
The case that Mr. Schaefer relies on, Jackson versus the state, that's someone who is charged with forgery based on purporting a document purporting to have been made by another person.
We did not charge under that provision of 1691.
We charged under the final provision, which is by authority of one who did not give such authority.
Mr. Gillen says that we didn't object to looking at these things in the record.
In other cases, let me be clear for the record, we do object.
That's the definition of going outside of the indictment.
So we agree with the court that considering those things outside of the indictment absolutely transforms that into a speaking demur is void.
It can't be granted.
If you look at the counts, the forgery counts, they track exactly the forgery statute.
Case law tells us that that's what's sufficient for a general demurrer.
I don't know that there's anything else to say about those counts.
As it relates to the false statements, again, addressed that at the very beginning, but I would point out that in Haley, where both the conviction was upheld and the indictment itself was approved of, the indictment said this on the false statements counts.
It said that the defendant It doesn't allege any of the things that Mr. Schaefer says in his pleadings that have to be alleged.
They don't have to be alleged.
Like they've done in other motions, the defendant here is trying to add elements to this.
Offense that just don't exist.
Trying to add pleading requirements that don't exist.
And Haley tells us the case itself directly quotes the indictment.
That indictment alleges far less than what we allege in our indictment.
And they said that the Georgia Supreme Court said that that case was just fine.
I don't think that Mr. Gillen addressed the filing false documents motion.
I believe in the pleadings they stated.
Those counts are flawed because they fail to allege that the filing of the false documents didn't succeed.
Again, that's not a requirement in an attempt charge.
And they also say that the counts don't say who actually attempted to place documents in a mailbox.
The way that we've charged the count, we've charged all of those defendants individually and as persons concerned in the commission of a crime.
And so it'll be for the jury to determine if all the defendants are liable for what one of their co-conspirators did.
With that, I'll take any questions the court might have.
The arguing over the public official is a losing argument.
Last motion we had for today.
Last motion!
Testify.
60 seconds.
It's going to be five minutes, guaranteed.
The state did not and cannot answer the direct question about a violation of the Safe Harbor Rule, why that would allow that situation to give the governor or the Secretary of State any authority to do anything.
That comes in under several of the arguments we've made.
I won't repeat it.
Simply, their argument is, let's put an agent up and ask the agent whether or not he had authority.
No.
By law, by federal law, they did not have the authority.
It's not whether some GBI agent thinks that he can come in here and tell the jury, pay no attention to federal law, pay no attention to the dissenting opinion in Bush v.
Gore.
Pay no attention to that.
I'm a GBI agent.
I say we can do it.
That's wrong.
They lose there because the law is very, very, very clear.
And we can go back and both the state and I know the Schaefer team will go back to look at our argument that was made to the court when my recollection could be wrong.
I don't think so.
We'll see.
My recollection was because the pleading was a part of the court system that we had a citation which permitted the court to take that into consideration as part of the record and thus not going outside the record for speaking to Murr.
I could be wrong, but we'll get that to you quickly because that...
And they latch onto that to say, pay no attention to the reality of what happened in this courthouse, in the court filings, which destroys their argument.
And so with that, Your Honor, I'll sit down and then I'll go back and get my other folder.
So, on your last motion here, I think, kind of as we were with the First Amendment issue, I think we need to figure out where we are procedurally.
You know, it sounds like, you know, this would be a pretty common motion.
It'd be a surplusage motion.
Georgia, it's not quite as clear for us.
So, excuse me.
I'll get to the rumble rant in a bit, people.
Let's start with just the authority.
To kind of take a scaffold to an indictment and cut out things we don't like.
Well, I mean, Your Honor, we talk about, there are two components to this motion.
One, there's the strike surplitage, and then there's a dismissal that we ask for, which is kind of also a component of the other.
Now, you know, we cite the state via Corrin.
On the issue of being able to, you know, the allegation, the indictment is not wholly unnecessary to constitute an offense as mere surplus.
When we read the surplusage opinions, we're talking about a miscited code section or a wrong date or something like that.
I don't think that's what your character is.
It's more just a legal conclusion, right?
A legal conclusion, number one, but it's even more than that.
It's this.
When they continually In their pleadings, in the indictment, in their pleadings, in their extrajudicial comments that they make, they have bombarded the defendants, the electors in this case, with the concept of and the phrase of fake electors.
Did he hear my argument?
That is a description, a conclusion, and a pejorative description.
It's a legal conclusion you very much disagree with.
It's the core of your defense.
I think it's not only a legal conclusion, but it's also something that we should be strict because it is just a pejorative statement.
I'm not saying, I'm saying, I can call you something really nasty in an indictment, and it doesn't necessarily have to be a legal conclusion about your violation of a particular law.
And so that's what we have here.
And we have this Well, I'm just trying to, again...
Based on what we've seen is allowable in Georgia, let's just make it simpler.
If in a murder indictment someone's alleged to have acted with malice aforethought, that's a legal conclusion.
That's right.
And if someone the defendant may really have an issue with, but we don't strike it.
We just go forward and we go to trial.
Different world, different cases, not the point that I'm trying to make.
What I'm trying to make is, you know, and you put in malice of forethought because you put that in there to define the terms.
What about this one?
There's one I remember when we talk about nicknames and aliases.
And I remember there's one in Georgia from the 90s.
They put in an alias of Stomper.
And he had beat the defendant to death.
And the Supreme Court said, that's okay.
You know why?
It's not a malicious nickname.
Because it probably proved that there was an alias of that guy called Stomper.
That's different.
The trial.
The state's saying we're going to prove that you're an unlawful electorate.
No, no, no.
In this indictment, what they have done in the indictment, it's not necessary.
If they want to, and we think it should be stricken, we think the count should be dismissed.
We know that based upon the case law that we've cited.
But in closing arguments, Lord forbid we ever get to closing arguments, hope we don't.
But if we did, and they showed up and they said, well, we think the evidence shows that they were fake electors.
That's one thing.
That's argument.
That's advocacy.
There's no place for it in the indictment.
And there's no place for it in what they have done, not only in the indictment, but in their pleadings and statements that are made outside to the media.
What they have tried to do is they want to have ingrained in the minds of the community and of jurors.
A concept that if you are not a Democratic elector on December the 14th, casting your vote at some other part of the state capitol, then you are a fake elector.
And that is a pejorative...
Term not necessary for the charges and should be stricken.
That's the point that we're trying to make.
And as it relates to our other arguments concerning the dismissal of those counts, I don't think I need to go back.
Most of my argument, or our argument on that, really deals with the Electoral Count Act, so I don't think I need to revisit that in case the court...
We'll get there.
Really, really wants to hear that again.
I don't think you do.
But absent that, Your Honor, we think, number one, that the counts should be dismissed.
The reasons articulated earlier and in our pleading.
And number two, that even if the counts are dismissed, in addition to that, references throughout the indictment to fake electors should be stricken as well.
Thank you, Your Honor.
All right.
Thank you, Mr. Yellen.
It's that the fake electors are the basis of the fraud, because they presume by law are fake electors.
Nowhere in this indictment is the phrase fake elector.
It does not exist.
Fraudulent.
Literally not in the indictment, so I'm not really sure what we're talking about removing something from the indictment that's not there.
As the court pointed out, and I struggle with this notion, I'm not going to say much because we're primarily relying on our response, but...
An indictment is itself a legal conclusion.
Every allegation in an indictment is a legal conclusion.
That's what an allegation is.
And so if indictments aren't allowed to have legal conclusions, then I guess we aren't allowed to have indictments anymore.
No, they allege fact.
Judge, I think what the defense's strategy is here, and I know it's their strategy because they ask for it in the motion.
They say, Judge...
You should strike this language from these counts because we don't like it, it's not fair, it's pejorative, whatever reason.
And now that you've stricken it, the counts don't charge a crime anymore, so you should dismiss them because they don't charge a crime anymore.
That's nonsensical.
We said in our brief opinions where the court says...
The appellate courts say you literally can't do that.
If something's essential to the charge, if it's essential to pleading an essential element of the charge, you can't strike it.
It's not subject to being stricken.
And I just highlight one citation that we referenced in our brief, Molloy v.
The State 293 Georgia 350 2013 Supreme Court case.
And that case says that when language in an indictment accurately describes the offenses charged and makes them easier to understand or more easily understood, they're not subject to being stricken because they're not surplusage.
And that in making that, in analyzing language in an indictment...
You know, in this context, Malloy also says that the language is to be interpreted liberally in favor of the state.
And so with that, again, we rely on our pleadings.
The phrase fake elector does not exist in this indictment.
Unlawfully appointed.
I don't want to take any questions that the court may have, but otherwise, nothing further.
Well, maybe one.
You know, I've seen a line of cases talking about...
Whether defects can be stricken, and a lot of that's dependent on whether they're material or non-material.
Is it safe to say that these phrases, the ones that are highlighted here, lawful elector votes, false electoral college votes, and duly elected and qualified presidential electors, would you say those are material phrases for each of the charges they appear in?
Oh, he's going to strike out those words?
That's a great question, and I think there's...
Kind of a superficial answer and then maybe a more in-depth answer.
My superficial answer is yes, they're material in the sense that they make the charges more easily understood.
They're accurate to describe the charges.
I am familiar with that line of cases, and it's a little bit unclear in the cases whether material means that or whether material means that, you know.
You strike something from the indictment that the count falls apart.
So I'm not clear.
What I know is in this context, I don't think it matters because what's being challenged, I think it's approved of by our appellate decision.
If you've happened to go down that road, though, and we can take the position that material means it can still survive, General Demer.
Any thoughts there?
Judge, again, turning back to Malloy, the holding of Malloy is that as long as the language in an indictment, even if it's not essential to an essential element, as long as it's accurate, it describes the offense's charge, and it makes it more easy to understand, it's simply not surplusage.
If it's not surplusage, it's not a subject being stricken.
But do we think these phrases are material and meaning they're necessary to survive a general demur?
They're obviously necessary because they underpin the indictment.
I don't either, and so I hesitate to give an answer without the indictment in front of me.
That's fine.
Why do you come to court without the indictment, you jackass?
They survive a general demur.
So anything that's not statutory language, I guess, wouldn't fall into that category.
But then we get into special demur territory, and that's a whole different situation.
Fair enough.
Thank you, Judge.
Okay.
Thank you all.
Anything else we should take up before we break?
Anything from the state?
All right.
Thank you, Ms. Young.
Anything from either council?
How long does this go on?
Okay.
And we'll be adjourned.
Thank you.
Adjourned.
Thank you, Judge.
Oh!
People!
That was...
I think I'd rather have been...
I think I'd rather be having a chorus.
At least they drug you up.
Hold on.
I'm going to wait for this.
I'm going to find myself an email, and then I'm going to read my notes.
Let's see if we can catch anything on a hot mic.
Now we can talk about it.
Download...
Oh, this is...
Lordy, lordy, lordy.
Now let the...
Now let the...
Assessments begin.
So sorry if the audio was...
I don't know if the audio of the court was loud so that when I was coming in, I've never had an issue where I have not been heard.
In fact, typically it's the exact opposite.
Everyone's Viva, shut the hell up, we want to listen to the court.
Except today because we didn't have any Fannie on the stand.
We didn't have any Nathan Wades testifying like buffoons and criminals that they are.
Oh, Viva always talking about things up his bum.
Dude, when you hit...
You look young.
Hold on a second.
You get to a point in time where you end up talking about your medical conditions and your medical ailments.
It's funny.
You focused on the bum and you ignored that I was talking about the dentist as well.
So who's got the obsession?
Bada bing, bada boom.
Oh.
They do drug you for the colonoscopy.
I'll tell you this from my experience.
When they did, I was awake and conscious for everything.
Viva.
Shut up.
We want to listen to Viva.
So you might hear some banging.
There's some people doing some serious, serious work.
And you might hear banging and whatever.
Let's get to this.
Viva, I'm still young.
I'm going to be 45 in May.
I went for a jog this morning.
Did my push-ups.
Did a little curls.
The funny thing is my right...
Bicep is bigger than my left, but I find it easier to do curls with my left less strenuous than with my right.
Viva is indeed prone to TMI.
Okay, guys, I'll stop it.
You guys, a bunch of medical proves.
Let's talk about medical conditions.
It's fun.
Okay, what happened today, people?
We had demurs.
Now, I brought up the definition of demur because...
It's a useful definition when you get to written demurs versus what they were arguing was a verbal demur, which is basically a verbal, a speaking objection, raising something orally that has not been alleged in your pleading.
A demur, an objection that an opponent's point is irrelevant or invalid while granting the factual basis of the point.
On demur, it was held.
The plaintiff's claim can't be said.
The demur today was that, we read it in the Supplemental briefing.
That the indictment is First Amendment freedom of speech violated.
That it violates Trump's First Amendment rights.
That was number one of the motions before Judge Scott McAfee today.
That it violated Trump's First Amendment rights, his freedom of speech, specifically political speech, which is that which needs to be protected the most.
There was a distinction that they were drawing.
Let me go back to my email.
And by the way, take this with a grain of salt.
I'm a former Quebec attorney, never did criminal law, but you can make sense of these legal terms as you go along.
They were distinguishing between facial invalidity of the demur versus as applied.
And the distinction there is facial First Amendment violation, facially invalid, would be the argument being raised in the Jan 6 case, from what I understand.
That the obstruction of government proceedings is facially invalid because it's ambiguous, void on its face, and therefore unconstitutional.
In this particular case, from what I understood from the arguments, given back and forth, even conceded by Sato, is that there had been, at once upon a time, a facial challenge of the provision of law, the RICO, or whatever the statute was that they were invoking, and apparently, facially, it was deemed not to be...
Void for vagueness, unconstitutional, or violative of First Amendment rights on its face.
And so then it's as applied.
The law itself is not fundamentally invalid, but as they're applying it right now, they are only going after speech.
And that was the argument, that they were only going after Trump's speech, arguing that his statements were false, and because they were false, they then were in furtherance of a fraudulent scheme.
To appoint fraudulent electors to falsify documents.
When they signed the alternate slate of electors documents, they were forging things.
When they went and asked Brad Ratfaceberger, find the lawful remedy to this.
Well, when he alleged that the election was stolen, it was false and therefore made in furtherance of a fraudulent conspiracy, hence the RICO charges.
Sadow.
I think eloquently, maybe not so eloquently, or at least it gets...
The more complicated it gets on a preliminary motion, in my humble experience, the less likely it is that a judge is going to grant it.
Statute of limitations expires, done.
If you have to argue over whether or not the statute of limitations has expired, the judge is going to say, look, there might be evidence.
There might be evidence of promises to not sue.
There might be evidence of fraudulent concealment that would, you know...
That would prolong, extend, suspend the statute of limitations.
The more complicated it gets, the more likely it is the judge is going to say, I'll get to it on the merits.
We'll let it go to trial.
I'm not going to prematurely do something now when additional evidence might be required to come to a proper finding.
So Sadow is arguing, it's not just because it's false that it can therefore be in furtherance of fraud.
And I think he made the point.
Well, he made one point that false speech is precisely that which needs to be protected.
If you're going to get criminally prosecuted for saying something wrong, that's going to stifle and chill free speech.
That's the obvious point.
But on a demurrage stage, when you're like, dismiss it now because all they're doing is going after allegedly false speech, Sato made the good point.
He says, if everything Trump said and did was in fact lawful, First Amendment protected, Could they then come with the RICO charge?
Because the prosecution's trying to argue some of it was false, some of it might not have been, but it sort of all played together in terms of this fraudulent scheme, so we'll find out at trial.
Some of it might have been actual lawful, but we'll find out.
And then Sato sort of raised a good argument.
Well, if all of it, hypothetically, all of it was lawful.
Trump said, this election is bogus, in my humble opinion.
That might be the bad example, but if everything he said was not false, Or was not unlawful.
Could they then come in with a RICO charge on the basis of his speech?
And Sato saying, no, they couldn't.
Therefore, it's not by mere virtue of the fact that it was false that it therefore becomes unlawful, illegal.
But I'm trying to think of the argument on the statements.
It's quite clear that it's going after political speech.
It's quite clear all of it's based on speech.
And the whole point, In my view, it should have been...
Grant that it was all false.
It was false, but false does not make unlawful.
And false is protected speech.
People are free to make mistakes.
It would be like defamation, extortion, fraudulent inducements.
Those are false statements, but they are also...
Criminal statements.
And in this case, they're saying, well, they were false, not necessarily criminal, but made in pursuance of a criminal RICO case.
And the question is, can you do that?
And I think the answer is going to be, I can't tell at this stage, and so I'm not dismissing the charges outright.
That's my prediction.
Let me just get back to the other notes that I had.
Diva Frye, 45, just a babe yet.
Won't matter if you're 80 because you'll still be young at heart.
Funny and pretty spry if you take good care of yourself and are blessed not to suffer major illness, says PS34.
That was just one chat that I happened to notice there in Rumble.
And we're going to get to some local stuff.
So Sata says if they were all overt, if all the overt acts were lawful, could he still be charged?
That's a good point.
They say that it was criminal because in furtherance of...
Oh, and then the judge actually said, well, is a directed verdict not the solution?
I can't decide this now, so let's hear the evidence.
And then make a...
I think the directed verdict is we don't even need to go...
Hold on.
How do you do a directed verdict?
Let me just look one thing up right now real quick.
The directed verdict is evidence has been adjuiced and no reasonable jury.
Would find.
Okay.
To obtain a directed verdict, the movement must establish that the evidence viewed in the most favorable light to the non-moving party shows that a jury could not reasonably differ as to the existence of material fact, and they're entitled to a judgment as of law.
Okay.
Let me cut and paste that from...
The directed verdict is we've seen it in a couple of other cases.
I want to say...
Well, we saw judgment notwithstanding a verdict.
We saw that in...
Michael Flynn's partner's case where the jury found him guilty of Farrar violations.
What was his name?
Armenian last name.
It ended in IAN.
I forget it.
So it's sort of like a judgment, notwithstanding a verdict, but a directed verdict is, we've gone through the trial.
Stop.
We don't even need the jury to render a decision because, judge, as a matter of law, you can dismiss this case right now.
Sad us cases.
Well, by that point, we've already suffered the injustice of a trial, or sorry, of a trial process where we ought never have gotten there in the first place because...
This was just going after speech in the first place.
The prosecution has the easier argument at this stage.
What was the...
Hold on, let me just get directed here.
Michael Flynn Partner.
Bijan...
Bijan...
Bijan Kian.
That wasn't his full name.
Hold on.
Bijan Kian, whose full name is Rafikian.
That's right, it was Rafikian.
Bijan Rafikian was Michael Flynn's business partner who was found guilty of FARA violations and then a judge came in and said, judgment notwithstanding a verdict because the jury had no business coming to that conclusion.
I don't like it when what's-his-face suggests it.
New York nipple judge Angeron.
It has to be adopted with parsimony.
Rafi Bajikian was his name.
So what was I saying?
I was on the notes here.
Let me see this here.
Oh, so the directed verdict.
The judge basically just proposed the solution that he's probably going to say in his ruling.
I can't decide on this now.
It's too complicated.
There's too many potential issues of fact, not just law, potential issues of fact that might influence the law.
So we'll go to trial.
If after the evidence is adduced, you think that no jury should even have to render an issue, come in with a directed verdict.
Okay, that's that element right there.
Before we get to the next part...
Let me read some crumble, France.
Over in the crumbles.
Here, check it out, people.
We got a bunch, actually, because Ginger Ninja, I saw you coming in hot earlier on.
For the love of Winston, says Barbrisa Ariane.
Then we got Lord of the Re.
Just got the notification on a scale of one to Reketa.
How late?
Not reading that part.
It'll get me canceled.
Ginger Ninja.
Hey, I was right.
Her name is Sage Seal.
Search Sage Seal, Chell, Sewn, and Hair.
She...
Does really well in otherwise uncomfortable situations.
I'd like to think I'm not dumb.
I keep getting lost in what McAfee is trying to ask and what the attorneys are trying to argue.
This talking about facts without a fact finder is throwing me for a loop, a hypothetical for you.
If it was found that the Georgia election was wrong.
If it was found that the election in Georgia was wrong.
Would everyone advocating for the validity be charged?
Is the state arguing that if people disagree with an election, continued, then someone is going to be charged?
Well, that's the problem.
It's not just because you say something false that it even becomes criminal.
Extortion, intimidation, threats, harassment, they might not even be false.
Extortion might, conceivably, I'll release the nude pictures I have of you.
It's not even false.
It's not because something was false that it becomes criminal.
In fact, if it's false, it's still protected speech.
So how can protected speech serve as the underpinning to the indictment?
Right to jail.
You're apparently never allowed to have an incorrect opinion.
Let's jail Al Gore because of Florida.
What is the state saying?
It might be legal conduct, but so what?
Yeah, because they're saying basically anything in furtherance of what we deem to be criminal activity.
The fraudulent electors.
What's it called?
The forged documents.
Even if it was lawful speech and lawful conduct.
Yeah, I think this election was stolen.
Ooh, that's in furtherance of the criminal stuff, which I don't even think was criminal, but we'll get to that in a second.
You know this nation is already gone.
Rest in peace, USA.
You were once a beautiful nation.
Well, out of the ashes might come independent balkanization of states, and Florida might turn out to be the greatest nation in the world.
If there's a...
Fall of the US and a balkanization of the States.
Viva, either turn down the court feed or turn your mic up.
We're losing your comments.
Well, probably for the better.
There wasn't really any quiet time to come in there.
You're right, Viva.
They weren't pretending to be the electors, but the judge will immediately say that's a fact question to be left of the fact finder, wouldn't he?
Yes, Ginger Ninja.
But they didn't even make that argument.
Nobody came in and said we are...
He's right.
The word fake electors didn't appear in the indictment.
Fraudulent electors did appear in the indictment.
They were referring to them as lawfully appointed electors.
Nobody was coming in and saying, we are the lawfully appointed electors.
They came in saying, we are the alternate slate of electors because we challenged the election.
There was no fraud.
There was no forgery.
There was no misrepresentation.
It's all bullshit.
This attorney looks like the love child of Evander Cain and Michael Chandler.
I know who neither of those people are.
GingerNinja, thank you.
Jason of the Greater Area.
I can't wait until we get Susan in front of the court like this, and she has to explain why blocking quitty YouTuber superchats is important.
Wojcicki's no longer the...
She's no longer involved in YouTube, I don't think, Susan Wojcicki.
It's a new CEO.
Wojcicki's son just overdosed, which is just horrendous.
David, I think the judge is ruling against Trump.
No, Shofar.
In my view, there's no question the judge is granting the dismissal today.
What he might do to split the baby of justice again is go in and say, take out the words lawfully appointed.
Hold on, let me bring up the indictment here.
Here, take out the words qualified presidential electors.
Take out anything that, take out any terminology in the indictment that qualifies the electors.
You see here?
The duly elected.
The day prescribed by law for counting the votes cast by the duly elected qualified presidential electors.
Take out that terminology.
Just put in electors.
Because even though they don't say the word fake, that implies that the other alternate slate of electors was, let me just, I can't read that here, was not duly elected, was not qualified, and was therefore fraudulent, hence the basis of the indictment.
Okay, taking that one out of here.
And we're going to get back to the notes in a second.
If I can find them.
Can I find them?
I can find them.
Okay, here we go.
My notes.
Skip back to there.
Then I wanted to get to the...
Oh, the impersonating electors.
Yeah.
Judge said, directed verdict.
Impersonating electors, I've had the problem with from the very beginning.
They were never impersonated.
Nobody was impersonating.
They were saying, alternate, we challenged the validity of this election, and now we have to have the debate.
Better argument, no one was impersonating.
Okay, fine.
Limited...
Duty.
Oh, arguing that the electors are not public officers or public officials, whatever the term is, I'm going to pick the brains of bigger brains and smarter people.
I'm going to ask Barnes.
I'm curious to know what Gouvet is going to say.
I'm curious to know what good logic is going to have to say about it.
It seems to me challenging the fact or challenging whether or not the electors are public officials or public officers susceptible of impersonation.
I think it's a losing argument.
Because whether or not they're public officials under the law, and I cut and pasted what I think is the provision of law for recognizing public officials in Georgia, to say that they don't have some status that might be susceptible of some form of criminal prosecution if anyone tried to impersonate the electors, I mean, I think that's a losing argument.
Whether or not they're public officials, public officers, they could presumably still find an alternative way of criminalizing Someone wrongfully, unlawfully impersonating, in the legal sense, one of the electors.
I would have just made the argument, okay, well, let's operate on the basis they are public officers, public officials.
Operate on that basis.
No one was impersonating them.
No one was putting on a little mustache and coming in and saying, hello, I'm the lawful elector, and here's my vote.
Nobody was doing that.
There was no impersonation.
There was no fraud.
There was no forgery.
That's what I would argue here.
Within the four corners of the indictment, other than their conclusions of law, which are not legitimate allegations, or I should say, they're not allegations that you have to take for granted because otherwise you just allege guilt and then you don't have to have a trial anymore.
So I would not have said that there was...
I would not have made that argument.
I would have just said, I'll operate on the basis that they are public officials.
Let's sidestep that argument.
No one was impersonating them.
No one came in and said, I'm Sam Smith.
Who got the electors for Joe Biden and put it for Trump.
Nobody did that.
So no one impersonated them.
No one forged documents.
No one tried to pass off as one document another document.
They were always alternatives.
They were always the alternate slate.
Even what they presented was such.
But that's just me.
And I take that with a grain of salt, but I want to know what smarter people think about that.
Yeah, because they were arguing electors, they're not public officers, so nobody can criminally impersonate them.
I think that's a losing argument.
Let's see here.
What did the neck muscle prosecutor say?
He said they're public officers, so impersonating is possible.
Okay, fine.
And then the glasses lawyer said fake electors is pejorative.
Okay, another losing argument.
Nobody gives a crap about pejorative.
Nobody gives a crap about insulting.
I understand the idea that you're using the indictment to defame and slander the accused.
Pejorative is not the word.
That calling them fake electors or suggesting they are, that they're a fraudulent slate of electors, it's not pejorative.
It's a legal finding, and you can't allege law in an indictment.
You can't allege law in a proceeding.
And that by so taking for granted as the basis for the indictment that they were invalid, unlawful electors is putting the carriage in front of the horse.
You're starting off with the basis that it was illegal.
To warrant the allegations in the indictment, and that is not arguing in circles.
It's just arguing from the conclusion.
If they were not unlawful electors, and they were in fact lawfully submitted alternate electors, do you have an indictment?
I argue no.
That's it.
Okay.
What does everyone else say here?
Let me see here.
Did I miss anything here?
Ooh, what's this?
Nathan Allen Pinar.
This is just a thought, but have you in LawTuber community thought about doing a mock trial series?
I'd watch that for certain.
I got a problem.
I can't act.
So I could do more debates, but I can't act.
So even in law school, I had such trouble.
I don't know if I ever did those mock debates because I can't get up there and...
I can have a debate and have a very vocal argument, but I can't act like something I'm not.
I'd rather argue for the meaning of taint, says Douche Elias, who's got the Lloyd Christmas face from Dumb and Dumber.
Austria.
Oh, I've been ranting over there, says Luke Carty.
I thought everything in court was like the Boston legal show.
Maybe Trump needs Alan Shore.
Good morning from Milo Mano.
So I got all of these.
Let me see what's going on in the chat here.
Anyway, I should...
Ta-ta-ta-ta-ta.
uh Okay, we got...
See, I put Danny Johnson on the timeout just for spamming, but it seems that...
Anyhow, okay, fine.
That's it.
People have very passionate views and feel the need to text them every 10 seconds.
What do we got back over here in the Rumbles?
Dear Lord, has my email address found its way onto something in the RNC?
I've gotten...
Many, many emails.
Stephen Miller, I know that I don't follow him.
David, I have breaking news to share with you.
We at America First Legal have just filed an absolutely momentous lawsuit in Maricopa County, Arizona.
Okay, fine.
I'll get to my emails afterwards.
And that's it.
I think we've got all of the chats.
What we're going to do, I'm not going to go on all day.
Did I have anything?
No, we're going to go over.
We're going to take it over to Locals because I owe Locals an after party because yesterday...
I was not able to come over for an after-party because I was co-streaming with Phil and I didn't want to be rude and like, hey, goodbye, Phil.
Now I'm going over to my Locals community.
So we'll talk about a bunch of stuff in Locals.
VivaBarnesLaw.locals.com But let me see.
There's a tip in there.
ThinboySlick says, well, if we're on the topic, better make sure that gold is clean.
VivaFri...
Oh, I just lost it.
Hold on one second.
ViewTip.
What does it say?
Anus-eating virus that kills 30% of people is spreading.
Something has happened.
Okay, we'll talk about that over on Locals.
Everybody, I'm going to give everybody the link, and then I'm going to go pick some brains after this.
Come on over to Locals.
We'll have an after party.
We'll talk about some stuff, some fun stuff.
What was I going to talk about?
That was fun, but that wasn't as fun as it's going to get.
So we'll see what the judge is going to say.
What else is coming up?
What else is coming up in the next...
In the next little while.
It's Thursday today.
Oh, it's Good Friday tomorrow, so I may or may not be able to go live because the kids are off school once again.
Next Monday, I'm going to be doing some podcasts.
Go check out the episode of The Unusual Suspects yesterday.
If you haven't watched it, I think it was a good one.
I talk about the Canadian euthanasia, which is demonetized on YouTube, by the way.
It's amazing.
I appreciate the subject matter as such that it might be Tachi, what was I going to do?
I was going to go with Unusual Suspects, but I talked about it on the Unusual Suspects yesterday.
And go check this out, by the way.
We talked about Freemasons on the Unusual Suspects yesterday, and their post gets now graffitied for correcting information on...
Actually, I've got to show it to you because it's kind of funny.
Apparently, they pissed off the Freemasons, and you can't do that.
Freemasonry, the teachings and practices of the secret fraternal order of the free and accepted Masons, the largest worldwide secret society.
Spread by the advance of the British Empire, Freemasonry remains most popular in British Isles and in other countries originally within the Empire.
Freemasonry evolved from the guilds of the stonemasons and cathedral builders in the Middle Ages.
They had to go and make sure to correct any critique of the Freemasons.
And that's me wearing a pink scrunchie, which apparently the chat didn't like.
So go check that out.
It'll be fun.
And let me give you the link to locals one more time.
Gonna have the party over there.
Thank you all for being here.
Link to locals, people.
You can think, if you like the work that I do, if you like Robert Barnes and myself, you should check out his bourbon with Barnes from last night.
He's making amazing points.
I'm not getting into the...
We might go over the lawsuit if I can find it, the Steven Crowder business, but a lot of useless infighting as far as I'm concerned and sort of gossipy infighting.
But Barnes makes some damn good points on the Crowder scandal, on the RFK Jr.'s appointment for VP, and Barnes is a good, smart man.
What's wrong with the Youth in Asia?
See Ali G episodes, says Chip Henson.
I used to like Ali G, and then I realized he's just an asshole.
I went back and watched Borat a decade later.
I was like, holy crap, I can't believe...
I found this.
It's not even funny humor.
It's mean-spirited.
I can't believe I laughed at the time.
But that might be what it means.
That might be what it means to have a younger brain that's not fully developed.
What's wrong with the euthanasia?
What is the chances of Melok living forever?
Zero.
Don't you think you is being a little bit pessimistic?
All right.
Come on over to...
Oh, no.
If I end the stream, then I'm going to end the stream and not go over to locals.
Locals?
I'm coming.
Rumble?
Thank you for being here.
Come over to Locals.
Let me see what I got here.
Jules Verne is in the chat.
Let's see who we got.
I wish they could read your live comments as they cancel out everything that is being said.
I will extract my...
Okay, I don't know what that is about.
Freemasons is a joke, says Jules Verne.
And Joyeuse Packatus, says Detonator.
That means happy Easter to everybody.
A meaningful Easter.
And let's just see if we missed anything over here.
Okay.
We did good, people.
We did good.
It's 12 o 'clock.
Should be done by the time the kids get home and I can go fishing this afternoon.
Catch a fish.
Bruno was funnier, to be honest.
Bruno...
Well, no.
Ali G in the house was funny.
And that was just stupid humor.
Borat...
The second Borat was just mean.
Not even funny.
Barbisa Ariane says, where's Winston?
Winston is here.
Let me show you a proof of life of Pudge, and then we're going to head on over to Rumble.
Look at this little pig.
She's a little pig, and she sits there sleeping.
Let me see if I can see this.
Like a little pig.
Look at the way that pig sits in her bed.
Her back legs don't work, so they're emaciated.
And she just sits upside down.
And now, look at this.
I'll just show you now.
She's a beautiful little piglet.
Here, go back here.
Zoom in.
And now she's sleeping ever so beautifully.
That's her sleeping right now.
I better get her outside and squeeze her out so she doesn't do that on the floor.
All right, I'm going to end it on YouTube.
I'm going to end it on Rumble.
Come on over to vivabarneslaw.locals.com.
And if not, I'll see you tomorrow.
Thank you all for being here.
The Viva Fry on Twitter.
And that's it.
Go!
Enjoy the day, but come to vivabarneslaw.locals.com.
Ending on YouTube.
Going over to Rumble.
Going to end the live stream on Rumble.
End livestream.
And that is it.
See you on Locals.
Enjoy the day, people.
Ooh, yeah.
Locals!
What's going on here?
Oh, let's see what...
So...
Oh, we got...
Okay, so...
Finboy Slick, I've been accused of focusing too much on my particular ailments.
First of all, let me just make sure that we're live.
We're still live here?
I hope we're live.
No Rumble Studio, Ginger Ninja?
No, they need to fix it.
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