Judge dismisses three counts against Trump in Georgia election criminal case, others still remain

Judge Scott McAfee presides over a hearing regarding media access in the case against former U.S. President Donald Trump and 18 co-defendants, at the Fulton County Courthouse in Atlanta, Georgia, on Aug. 31, 2023.

Arvin Temkar | AFP | Getty Images

A judge on Wednesday dismissed six counts in the Georgia criminal election interference case against former President Donald Trump and five other defendants, saying that the indictment against them failed to sufficiently explain the basis for those specific charges.

But other criminal counts against Trump and the defendants remain after the order by Judge Scott McAfee.

The dismissed counts had accused Trump and the others of the crime of solicitation of violation of oath by a public officer.

The counts related to efforts by the defendants to get members of Georgia’s legislature and the secretary of state to delegitimize the election victory of President Joe Biden over Trump in the state’s 2020 contest.

Defense lawyers for Trump and the others argued, among other things, that the indictment charging them with that specific count did “not detail the exact term of the oaths that are alleged to have been violated,” McAfee noted in his order.

McAfee agreed, saying that the language in the indictment accusing the defendants of soliciting elected officials to violate their oaths to the U.S. and Georgia constitutions “is so generic as to compel” dismissal of the charges.

“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,” McAfee wrote. “However, the lack of detail concerning an essential legal element is, in the undersigned’s opinion, fatal.”

The judge said the indictment contains all of the essential elements of the alleged crimes, but “fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited.”

The judge 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.”

“On its own, the United States Constitution contains hundreds of clauses, any one of which can be the subject of a lifetime’s study,” McAfee wrote.

Former U.S. President Donald Trump gives a thumbs-up as he arrives at Atlanta Hartsfield-Jackson International Airport in Atlanta, Georgia, on Aug. 24, 2023.

Joe Raedle | Getty Images

In addition to Trump, the other defendants who had solicitation counts dismissed were Rudy Giuliani, John Eastman, Mark Meadows, Ray Smith and Robert Cheeley.

Trump, who on Tuesday clinched the Republican presidential nomination, was charged with three of the dismissed solicitation counts.

One of the counts was related to his effort to get the speaker of the Georgia House of Representatives to convene a special session to unlawfully appoint presidential electors who would cast ballots for him in the Electoral College.

Another of the dismissed counts accused Trump and his White House chief of staff Meadows of asking Georgia’s secretary of state to unlawfully influence the certified election returns. The third tossed count accused Trump of asking the secretary of state to decertify the election.

Steve Sadow, Trump’s lead lawyer in the case, in a statement to NBC News, said, “The Court made the correct legal decision to grant the special demurrers and quash important counts of the indictment brought by [Fulton County District Attorney] Fani Willis.”

“The ruling is a correct application of the law, as the prosecution failed to make specific allegations of any alleged wrongdoing on those counts,” Sadow said. “The entire prosecution of President Trump is political, constitutes election interference, and should be dismissed.”

A spokesman for Willis, who is prosecuting Trump, declined to comment to CNBC.

McAfee is expected to rule within days on a motion seeking to disqualify Willis from the case because of her romantic relationship to the special prosecutor she hired to investigate Trump and the other defendants.

— Additional reporting by CNBC’s Kevin Breuninger.

This is breaking news. Please check back for updates.

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