The presiding judge in the Georgia criminal case against Donald Trump and his allies has thrown out some of the charges against the former president and several of his co-defendants.
The partial dismissal by Georgia Superior Court Judge Scott McAfee leaves most of the sprawling racketeering indictment intact.
McAfee ruled that six charges in the 41-count indictment related to Trump and some co-defendants allegedly soliciting the violation of oath by a public officer lacked the required detail about what underlying crime the defendants were soliciting.
Trump was named in three of the counts specifically, meaning the former president is now facing 88 charges over the four criminal indictments in Georgia, New York, Washington, DC, and Florida.
Prosecutors alleged that Trump and some of his co-defendants violated the law by pressuring members of the Georgia legislature to unlawfully appoint presidential electors. They also brought the charge against Trump and his ex-White House chief of staff Mark Meadows for the January 2021 phone call with Georgia Secretary of State Brad Raffensperger in which Trump asked Raffensperger to “find” the votes that would win him the state.
“The Court’s concern is less that the State has failed to allege sufficient conduct of the Defendants – in fact it has alleged an abundance. However, the lack of detail concerning an essential legal element is, in the undersigned’s opinion, fatal,” McAfee wrote in Wednesday’s order.
“As written, these six counts contain all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited,” McAfee added. “They do not give the Defendants enough information to prepare their defenses intelligently, as the Defendants could have violated the Constitutions and thus the statute in dozens, if not hundreds, of distinct ways.”
Though he threw out the solicitation of violation of oath by a public officer charge, McAfee said that the alleged conduct that was the foundation of that charge could still be relied upon by prosecutors as part of the larger racketeering charge that is the heart of the Georgia case.
“This does not mean the entire indictment is dismissed,” he wrote.
‘Unforced error by prosecutors’
CNN Senior Legal Analyst Elie Honig said the ruling “is an unforced error by prosecutors and an undeniable setback.”
“While most of the charges remain intact, the judge has thrown out six charges for being legally defective,” Honig said. “Essentially, prosecutors charged Trump and others with asking Georgia officials to violate the Constitution, but prosecutors failed to specify any underlying constitutional provision.”
Michael Moore, a CNN Legal Analyst and former US attorney, said McAfee’s action may mean the judge doesn’t think the case will go to trial this year.
“This is a standard motion from the defense, but it puts another “cut” on the case …and cases like this one often can suffer death by a thousand cuts,” Moore said. “It was interesting that the judge made room for the possibility of an appeal by the state. I don’t think he is expecting this case to be tried this year.”
Steve Sadow, the lead defense lawyer for Trump in the Georgia election subversion case, said McAfee made “the correct legal decision.”
“The counts dismissed against President Trump are 5, 28 and 38, which falsely claimed that he solicited GA public officials to violate their oath of office,” Sadow said in a statement. “The ruling is a correct application of the law, as the prosecution failed to make specific allegations of any alleged wrongdoing on those counts. The entire prosecution of President Trump is political, constitutes election interference, and should be dismissed.”
Jeff DeSantis, a spokesman for the Fulton County district attorney’s office said, said the ruling is being reviewed.
Ruling on Fani Willis coming soon
The new ruling did not address the ethics allegations brought against Fulton County District Attorney Fani Willis by the defendants. McAfee has pledged to issue a ruling on that issue by the end of the week.
“I plan to stick to my timeline,” McAfee told CNN on Wednesday morning. He did not elaborate.
This story has been updated with additional details.