'Uphill battle': Legal expert pulls apart Trump's effort to throw out Fulton County case

A judge is considering Thursday if Georgia election subversion charges against Donald Trump should be thrown out on First Amendment grounds, but a legal expert doesn't expect him to be let off the hook.

The former president's attorney Steve Sadow argued Thursday in a Fulton County courtroom that Trump's conspiracy theories about voter fraud were political speech and therefore protected by the U.S. Constitution. But CNN legal analyst Elie Honig expects the same result as the one that met a similar effort in federal court in Washington, D.C.

"The core argument he meant that we just heard from Donald Trump's lawyers is that everything he's being prosecuted for here is protected First Amendment political speech," Honig said, "and you heard the lawyer argue that even if the speech is false, even if it's unpopular, it's still protected.

"Now the response from the prosecutors, from the [district attorney's office] here is that, 'No, he crossed the line to where his speech became part of the charged criminal acts.'"

"Now there's a sort of separate dispute here about whether the court has to accept the indictments, the allegations as they are in the indictment," Honig continued.

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"Donald Trump's team says, 'Why do we just have to take it as a given that this was illegal because that's what it says in the indictment, don't we get to contest that?' That leads to the sort of the last point that we heard there, which is the question of when does this First Amendment issue get decided?

"You heard the judge sort of say, 'Well, why isn't the way we decide this is we put it in front of the jury and we let the jury decide at trial? Donald Trump's lawyer objected to that, he said, 'No, we'd like you to throw it out now, why go through with the whole exercise of a trial if this indictment ultimately is going to no good?'"

"One other thing to note," Honig added. "This same argument was made by Donald Trump in his federal case in Washington, D.C., relating to election subversion and the federal judge there, and you heard reference to this judge, Tanya Chutkan, she rejected that First Amendment argument. She said, 'No, I find this is not protected speech, it crossed the line into criminality, and we'll leave it for the jury.' So Trump's team is fighting an uphill battle here, legally, but the judge is willing to hear them out."

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