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Fulton County Judge Unsure If Trump Can Be Tried If He Wins Election

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OPINION: This article may contain commentary which reflects the author's opinion.


The judge presiding over Donald Trump’s case in Fulton County, Ga., expressed reservations last week that he could be tried in his racketeering case should he manage to win next year’s presidential election.

The Washington Examiner reported that Superior Court Judge Scott McAfee asked during a proceeding on Friday, “If your client does win election in 2024, could he even be tried in 2025?”

McAfee posed his question “over motions from Trump and his co-defendants to dismiss charges in the Georgia 2020 election subversion case,” the outlet reported.

Steve Sadow, the attorney representing Trump and appearing in the case for the first time since the former president’s indictment in Georgia in August, asserted that he believes Trump cannot be tried until after completing a potential four-year term in office if he secures victory in the 2024 election.

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“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 responded.

The Examiner noted further: 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.

Meanwhile, a former federal prosecutor has weighed in on what she described as a “perplexing” legal move Fulton County, Georgia District Attorney Fani Willis just made in her case against Donald Trump.

Previously, Willis scheduled his trial on racketeering charges related to alleged efforts to overturn the 2020 election results in the state for Aug. 5, 2024, which means Trump’s trial will almost certainly extend beyond Election Day, which is Nov. 5 of next year.

As reported by Newsweek, “Former federal prosecutor Joyce Vance said that Willis’s proposed August 5 start date is ‘a little perplexing,’ given that there may be an opportunity to put Trump on trial earlier in the year, especially as Judge Aileen Cannon might delay Trump’s trial for allegedly hoarding classified documents at his Mar-a-Lago estate in Florida.”

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Writing on her Civil Discourse blog, Vance said she’ll be watching to see what Fulton County Judge Scott McAfee does with Willis’ Aug. 5 request.

“With Judge Aileen Cannon in Florida showing signs of being less than committed to her May trial schedule, there might be some room for an earlier date in Georgia, which makes the timing of Willis’ request a little perplexing,” Vance wrote, per Newsweek. “The Mar-a-Lago case is straightforward, and it’s hard to imagine it taking more than several weeks, at the outside, to try. We may gain some insight Friday on when Judge McAfee wants to try his case.”

Willis told the Washington Post’s Live’s Global Women’s Summit on November 13 that she believes Trump’s trial will extend beyond Election Day.

“I believe the trial will take many months. And I don’t expect that we will conclude until the winter or the very early part of 2025,” Willis said. “I don’t, when making decisions about cases to bring, consider any election cycle or an election season.”

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If he wins the presidential election next year, Trump would have a range of options to either delay the trials or make them go away, such as pardoning himself. He could also argue before the U.S. Supreme Court that he has immunity and that the cases are interfering with his ability to serve as president, Newsweek reported.

New York University law professor Stephen Gillers told the outlet that the Supreme Court probably would rule to delay the trials until he’s out of office when he’s 82.

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