The judge presiding over Donald Trump's Georgia racketeering case questioned Friday whether the former president can be tried if he wins the 2024 presidential election.
"If your client does win election in 2024, could he even be tried in 2025?" Superior Court Judge Scott McAfee asked during a hearing over motions from Trump and his co-defendants to dismiss charges in the Georgia 2020 election subversion case.
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Trump attorney Steve Sadow, who made his first appearance in the case since Trump's indictment in Georgia in August, said he believes the former president could not be tried until after his four-year term in office if he wins the 2024 election.
"The answer to that is, I believe that under the Supremacy Clause and his duties as president of the United States, this trial would not take place at all until after he left the term of office," Sadow replied.
If the judge were to accept Sadow's argument, that would mean Trump's Georgia trial would be delayed until at least 2029 in the event of a Trump victory over President Joe Biden. Only Trump would have his trial postponed, however; Sadow said the other co-defendants in the racketeering case would receive no such delay.
Fulton County prosecutors have asked McAfee for an August start to the trial against Trump and his 14 remaining co-defendants, which was the wider topic of McAfee's question on Friday. The judge said he wouldn't issue an order setting a concrete trial date until at least early 2024.
The first arguments at the start of the hearing on Friday surrounded the so-called fake electors scheme and the Electoral Count Act, which governs the certification of presidential elections.
Prosecutors say the alleged scheme to overturn the 2020 election on Trump's behalf involved the casting of false Electoral College votes by 16 Georgia Republicans and that those efforts were meant to "disrupt and delay" the joint session of Congress on Jan. 6, 2021, to "unlawfully change the outcome" of the election.
Attorneys for former Georgia GOP Chairman David Shafer, who was one of the fake electors who allegedly tried to overturn Trump's 2020 defeat in the state, argued that the "fake electors" were not fake but were actually "contingent" electors who submitted their votes to Congress because Trump was actively contesting the results.
“They’re all contingent electors if they don’t meet the safe harbor date,” Shafer's attorney Holly Pierson claimed Friday, referring to the Dec. 8 deadline states face to certify their results following presidential elections.
Shafer's counsel was met with stiff rebuttal by Fulton County prosecutor Will Wooten, who works under District Attorney Fani Willis.
"The elephant in the room is that none of them were presidential electors," Wooten said.
“The defendant’s safe harbor theory is incongruent with the Constitution," he added.
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The hearing in McAfee's court is ongoing as of 3 p.m. Friday afternoon. Before commencing a five-minute break, McAfee said he would "see how much further ground we can cover" today and suggested "we may need to reconvene."
This is a developing story and will be updated.