Judge McAfee’s Dismissal of Three Charges Against Trump Changes Nothing

DON’T PANIC. JUDGE SCOTT MCAFEE’S dismissal on Wednesday of six of the forty-one counts alleged against Donald Trump and eighteen other co-defendants in the Georgia election interference case isn’t cause for alarm among those who long to see Trump held accountable for his alleged crimes in Georgia and elsewhere.

The dismissed counts are incidental in the greater scheme of things. The core of the case against Trump remains intact. It is difficult to imagine that Fulton County District Attorney Fani Willis—assuming that Judge McAfee denies the pending motions to have her removed from the case—will do anything other than move forward with the remainder of the case. If anything, the absence of the six dismissed counts might streamline the remaining case and make it easier for the prosecution to achieve convictions.

Only three of the dismissed counts—counts 5, 28, and 38—named Trump as a defendant. Each of those counts in the original indictment alleged narrow, highly specific crimes:

• Count 5 charged Trump with soliciting the speaker of the Georgia House of Representatives to violate his oath of office by calling for a special session of the Georgia General Assembly to unlawfully appoint fake presidential electors.
• Count 28 charged Trump and Mark Meadows with soliciting Georgia Secretary of State Brad Raffensperger violate his oath of office by altering the lawfully certified election returns in Georgia.
• Count 38 alleged that on September 17, 2021, Trump unlawfully solicited Raffensperger to violate his oath of office by decertifying the election.

Each of the other three dismissed counts—2, 6, and 23—alleged that Rudy Giuliani, Ray Smith, and other Trump co-defendants solicited state legislators to violate their oaths by working to unlawfully appoint fake electors.

None of the six dismissed counts results in any of the co-defendants being dropped entirely from the prosecution. And, most crucially, none of the dismissed counts goes to the heart of the charges against Trump, that he and the other defendants violated the Georgia RICO Act (Racketeering Influenced and Corrupt Organizations) by engaging in a broad conspiracy to unlawfully overturn the results of the 2020 presidential election in Georgia. Judge McAfee made it clear that the dismissal of the six counts “does not mean the entire indictment is dismissed.”

In its intact count 1, the indictment alleges 161 overt acts taken in furtherance of the conspiracy, including the specific acts alleged in the six dismissed counts. While Judge McAfee dismissed the six counts as standalone crimes on the ground that they were not pleaded with sufficient specificity, he went out of his way to make it clear that his order doesn’t apply to the “corresponding overt acts” listed in the RICO count. In other words, the acts alleged in the dismissed counts aren’t removed from the case—they can be introduced in evidence to support the RICO claim even if they don’t individually rise to the level of standalone crimes.

Moreover, while Judge McAfee dismissed three counts against Trump for the highly specific crime of soliciting the Georgia House speaker and secretary of state to violate their oaths of office, the underlying acts alleged in those counts are still the subject of numerous criminal violations alleged in the indictment, not just the RICO claim.

For instance, counts 9, 11, 13, 15, 17, and 19, none of which were dismissed, all charge Trump and others with an unlawful conspiracy regarding the fake electors. The fact that one single, specific phone call Trump had with the speaker of the Georgia House regarding the fake electors isn’t charged as a separate, standalone crime has little if any impact on the case as a whole.

The fake elector scheme is still at the beating heart of the Georgia case.

And while Trump’s infamous call with Raffensperger, in which Trump attempted to convince the Georgia Secretary of State to “find” him enough votes to overturn the results of the Georgia election, may no longer be the subject of a standalone count, it remains very much at the heart of the RICO claim.

Despite doing only minimal damage, if any at all, to the Georgia case against Trump, Judge McAfee gave the prosecutors an escape hatch. If District Attorney Willis wants to try to reinstate the dismissed claims by resubmitting the case to a grand jury, she has six months to do so. Alternately, “the State may request a certificate of immediate review” by an appellate court.

As gracious as these invitations may sound, Willis would have to be out of her mind to accept them. There’s more than enough of the case left to move forward, and taking either the grand jury or the appellate route would introduce significant delays and uncertainties into the case.

Willis’s path is clear: She should immediately and clearly announce that while she may not agree with the judge’s ruling, she accepts it and intends to move forward with neither a new grand jury nor an appeal.

Nothing has happened—yet—to require a change of course.

And the waiting for Judge McAfee’s ruling relating to Willis’s personal relationship with a colleague, and what that might mean for the future of this prosecution, continues.