Mr. Wakeford said they were talking about "removing something that is not there," because the phrase is not used in the indictment.
He added that an indictment itself is a legal conclusion and it could not be argued that conclusions should not be allowed in the indictment.
"I think what the defense's strategy is here, and I know it's their strategy because they asked for it in a motion, they say 'Judge, you should strike this language from these counts because we don't like it, it's pejorative, whatever reason, and now that you've stricken it the counts don't charge a crime anymore so you should dismiss it,''' he said. "That's nonsensical."
Mr. Gillen said that in the indictment the state has "bombarded the defendants with the phrase 'fake electors.'"
"That is ... a conclusion, a pejorative description," Mr. Gillen said. "It's not only a legal conclusion, it's something that should be stricken because it's a pejorative saying."
He argued that was something prosecutors would be allowed to argue in closing arguments after presenting their body of evidence, but could not be used in an indictment.
Mr. Wakeford also asked to address "the elephant in the room."
"Mr. Shafer is in the 11th Circuit right now demanding to be recognized as a federal officer. What are we? Are we saying this position of elector is an officer or not? I think they need to make up their mind there," he said.
Mr. Shafer had tried to remove his case to federal court on the basis that he is a federal officer and cannot be tried by the state. A federal judge had rejected his request, and Mr. Shafer is now appealing in federal court.
Mr. Wakeford argued that these were disputes of fact, and they planned to question officers in these positions at trial, asking about their duties and jurisdiction.
"This is premature," he said.
"These electors cannot be, under Georgia law, public officers," Mr. Gillen said, pointing to definitions found in Georgia Supreme Court cases.
He noted that by law, on Dec. 14, 2020, there were no duly elected presidential electors in Georgia, whether Republican or Democrat, and the state could not only indict the Republican electors for impersonating public officers.
Craig Gillen, attorney for defendant David Shafer, argued on remaining special demurrers filed with the court. The judge had already struck six charges from the indictment after ruling on several of the defendants' demurrers.
Mr. Shafer was the chair of the Georgia GOP and one of the alternate electors.
He was charged with "impersonating a public officer," and Mr. Gillen argued the cases the state cites have people impersonating agents, and they do not define public officer in the indictment.
Mr. Sadow argued that it was ripe to argue this pre-trial.
"If it's not ripe now and we get into intent, when does the court determine that? Do you determine that after you have a trial?" Mr. Sadow said. "Do we go through the whole trial? God forbid there should be a conviction and then we go back to trying to determine as-applied?"
Judge McAfee said it would be the directed verdict stage.
Mr. Sadow said the situation changes when "all" of the overt acts contain no illegal conduct, then there is an "insufficient basis" to indict President Trump.
"The statement that even if it were true it could still be an overt act suggests that he could be prosecuted for true speech," Mr. Sadow argued.
He also rebutted Mr. Wakeford's argument that President Trump is being "prosecuted for lying to the government."
John Floyd, representing the state, asked to follow up and the judge joked that Mr. Sadow was being "doubled up" even before trial.
Mr. Floyd is one of the nation's leading RICO experts, having authored a textbook on RICO statutes state by state, and was hired as special counsel by the district attorney to work on this case.
"Defendant Trump fundamentally misunderstands the role of an overt act in a conspiracy case," he said. "We heard Mr. Sadow discuss various overt acts ... 'well this is just a tweet, this is just a phone call' ... the unspoken, incorrect underlying theory, then, is that every overt act must be a crime. As we've discussed a number of times ... that's not true."
Mr. Wakeford pushed back on the falsity arguments.
"He's not being prosecuted for lying, he's being prosecuted for lying to the government," argued Mr. Wakeford. "An act that is illegal because of harm to the government. That's why it's illegal, that's why it's different."
"Same with filing a false document: it's not just you've made a false statement, it's that you swore to it in a court document and submitted it to the court. That does harm to the judicial system," he said. "These statements are part of criminal conduct."
Mr. Wakeford pointed to opinions written by U.S. District Court Judge Tanya Chutkan, who is presiding over a federal case that similarly charges President Trump for his actions to challenge the 2020 election results.
"Judge Chutkan in D.C. has evaluated all of these arguments under Supreme Court precedent already," he said. "I'm hardly going to improve upon the findings of a federal judge."
Mr. Sadow acknowledged that when it came to the RICO charge, the First Amendment as-applied challenge was "harder" to argue and legally might not apply as much.
Mr. Sadow said each and every allegation in the indictment as it relates to President Trump "involved expressive conduct or speech."
President Trump was originally charged on 13 counts, but the judge had struck six counts from the indictment earlier this month, leaving President Trump with 10 charges.
"Take out the political speech—no charges," Mr. Sadow said.
In order for defendants to bring a First Amendment as-applied challenge before the trial, they must only rely on facts presented in the indictment.
Judge McAfee pointed out that the indictment attaches "unlawfully, willfully, and knowingly false" to President Trump's speech.
"Those words are not words of fact," Mr. Sadow argued. "Those are words of legal commentation."
Mr. Sadow argued the actions alleged of President Trump in the indictment constitute "core political speech, political discourse, political speech at its zenith."
"I don't think there's any question that statements, comments, expressive conduct that deals with campaigning or elections is always found to be at the zenith of protected speech," he argued. "What do we have here? Election speech."
The distinction matters, he argued, because "the more core speech, the more it is protected, the less the government should be involved in restricting it."
Fulton County Superior Court Judge Scott McAfee held a hearing on March 28 on motions still awaiting rulings, beginning the morning session with a First Amendment as-applied challenge from former President Donald Trump.
Defense attorney Steve Sadow began by asking the judge to state whether he believed such a challenge was ripe, noting that would be a waste of time to argue only for the court to determine such a challenge premature.
Both Mr. Sadow and Donald Wakeford, arguing for the state, pointed to cases where courts found a First Amendment defense could be made pretrial, but doing so means the only facts that can be brought in are the ones in the indictment.
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