Judge McAfee's Behavior During Trump Hearing Leaves Analysts in the Dark

Fulton County Superior Judge Scott McAfee presides in court during a hearing at the Fulton County Courthouse on Thursday in Atlanta, Georgia. McAfee did not signal how he would rule even after Thursday’s hearing.

Judge Scott McAfee kept his cards close to his chest on Thursday as he returned to former President Donald Trump’s election interference case in Georgia.

McAfee held his first hearing in the case since he declined the motion to disqualify Fulton County District Attorney Fani Willis and his behavior left legal analysts in the dark about just how he would rule on Trump’s efforts to get the case thrown out on First Amendment grounds.

Anthony Michael Kreis, an attorney and professor at Georgia State University College of Law, told Newsweek that McAfee didn’t offer much insight into how he’d rule, leaving even experts guessing about whether or not the arguments would be enough to derail what has been seen as the strongest of the four criminal cases against Trump.

“He did not show a hand in terms of how he might come out, but he did ask incisive questions of the state and the defendants throughout the entire hearing,” Kreis said.

McAfee agreed to hear arguments based on the pretrial motions filed by Trump and former Georgia GOP chair David Shafer, bringing the focus back to the sweeping RICO case even as the former president and his associates seek to appeal McAfee’s ruling on the disqualification of Willis. After weeks of court proceedings, McAfee said Willis could remain on the prosecution if Special Prosecutor Nathan Wade stepped down. Wade resigned hours after the ruling.

During Thursday’s hearing, Trump’s attorneys argued that the indictment against him should be dismissed because his political speech is protected by the First Amendment—an argument that has already been shut down by Judge Tanya Chutkan, the D.C. judge overseeing Trump’s federal election interference case. But McAfee gave no signs as to whether or not he agreed with Chutkan’s analysis.

“We’re done after 90 mins of dense legal arguments about whether to dismiss any individual counts in the indictment. No indication from McAfee on how he’ll rule, trial timing, etc,” Tamar Hallerman, an Atlanta Journal-Constitution reporter focused on Fulton County, wrote in a post on X, formerly Twitter.

While there’s no telling how he’ll rule on Trump’s pretrial motions, McAfee had previously rejected similar First Amendment challenges brought by two of Trump’s co-defendants in October. In a ruling on the motion to dismiss from former Trump lawyers Kenneth Chesebro and Sidney Powell, McAfee found the argument was “premature” and that the factual record was “incomplete and vigorously disputed.”

Former federal prosecutor Neama Rahmani told Newsweek McAfee’s elusive behavior is not unexpected seeing as how he’s handled the case thus far.

The judge hasn’t ruled from the bench on dispositive motions, choosing instead to issue written rulings. And when he ruled on the disqualification matter, he surprised observers by not issuing a yes or no ruling, but allowing Willis to stay on the prosecution so long as other requirements (Wade’s resignation) were met.

“Judge McAfee plays his cards close to the chest,” Rahmani said. “That makes sense given that this is one of the biggest trials in American history and Trump and the co-defendants will almost certainly appeal any adverse ruling. By playing it safe, McAfee hasn’t been reversed on appeal like Judge Cannon in the classified documents case.”

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