Judge’s Decision To Dismiss Six Counts In Trump Indictment Could Gum Up Fulton DA’s Case, Legal Experts Say

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The racketeering case against former President Donald Trump could be further delayed if prosecutors choose to file a superseding indictment, legal experts said Wednesday.

Judge Scott McAfee issued a decision Wednesday dismissing six “Solicitation of Violation of Oath by Public Officer” counts in the indictment against Trump and his co-defendants that did not offer them “enough information to prepare their defenses intelligently.” The ruling means prosecutors will now have to make a choice about how they will move forward, which could impact the timing of the trial, legal experts said.

“This means that [Fulton County District Attorney Fani] Willis will have to decide whether she wants to appeal, go forward as is without those counts as to those defendants, or to take the entire case back to the grand jury to seek a superseding indictment that fixes the defects,” Atlanta-based defense attorney and legal analyst Philip Holloway told the Daily Caller News Foundation.

Trump was indicted in August for alleged efforts to overturn the 2020 election in Georgia along with his co-defendants. Three of the six counts McAfee dropped Wednesday were against Trump.

George Washington University law professor Jonathan Turley wrote on X, formerly Twitter, that McAfee’s dismissal of six counts “presents a difficult question for the prosecution.” (RELATED: ‘Embarrassing’: CNN Legal Expert Deems Judge’s Move To Toss Six Trump Counts ‘Undeniable Setback’)

“If they try to secure a superseding indictment to correct the earlier mistakes, it will make it difficult to try the case before the election,” he wrote. “The defense is allowed discovery and time to prepare for the new alleged crimes. That will take time off the clock. The court has indicated that they can still rely on the underlying conduct to make out the general racketeering charge. However, that theory was already thin soup and it just got a bit thinner.”

McAfee’s ruling noted that the state can bring new indictments if it chooses. Trump’s lead defense counsel Steve Sadow still called it a victory, saying that the prosecution “failed to make specific allegations of any alleged wrongdoing on those counts.”

Atlanta-based defense attorney Andrew Fleischman told the DCNF that it “may create a serious delay” if the state opts to appeal or file a superseding indictment.

“If Fulton County simply accepts the decision and moves forward, it should have very little impact,” Fleischman told the DCNF. “Much of the same conduct is covered in the RICO count already, it doesn’t have a meaningful impact on punishment, and frankly, it was already really hard to prove that Donald Trump intended to cause elected officials to violate the constitution.”

In January, a co-defendant filed a bombshell motion alleging Willis financially benefited from appointing her lover, Nathan Wade, to work as a special prosecutor. McAfee is also expected to rule this week on the motion to disqualify Willis.

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