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What Judge McAfee dismissing counts against Trump in Georgia really means

Fani Willis can cure the six rejected counts by seeking a new indictment, appealing the ruling, or just proceeding with her RICO case as is. But her potential disqualification still looms.


Judge Scott McAfee has ruled in Georgia — but not in the disqualification decision we’ve been waiting for. Rather, the judge overseeing the Donald Trump election case in Fulton County dismissed six counts in an unrelated order on Wednesday. But while dismissal sounds dramatic, this latest order might not ultimately have much effect on the case against Trump and others.

Importantly, the initial 41-count indictment itself, including the powerful RICO charge, isn’t dismissed. And even those six counts can still be saved, because McAfee noted that Fani Willis’ office can pursue another indictment that addresses the issue he identified. The state can also seek to appeal his ruling. 

The dismissed counts against Trump, his former lawyer Rudy Giuliani, his former chief of staff Mark Meadows and others involve a charge called Solicitation of Violation of Oath by Public Officer. They include, among other things, the infamous allegations of Trump soliciting Georgia Secretary of State Brad Raffensperger. The former president wanted the state official to “find” votes for him in the 2020 election he lost to Joe Biden.   

So, what’s the issue that led McAfee to dismiss these counts? Basically, the judge found the indictment wasn’t specific enough when it came to the alleged oath violations at issue. “As written, these six counts contain all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited,” the judge wrote. Crucially, he pointed out that his ruling doesn’t apply to the corresponding conduct alleged in the racketeering charge. That’s one of the reasons that his ruling doesn’t doom the case. 

The state has some options for how to react. A question that prosecutors are asking themselves as they review the ruling might go something like: Can we live without these counts? And if we can’t, what do we want to do about it? Living with it would mean going forward with a slightly slimmed-down indictment that still contains many charges, including the potent RICO charge. The prosecution could also seek a new indictment or appeal.

The bigger decision we’re waiting on is whether McAfee will disqualify Willis and her office from the case. That, of course, would create greater issues for the fate of the prosecution, because it would take time to assign the case to another district attorney or prosecutor. McAfee previously said he intends to issue that disqualification ruling by Friday.  

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