Trump Lawyer Says Georgia Case May Need To Be Dropped if He Can’t Get Overlapping Evidence From Jack Smith’s Case

ATLANTA — An attorney for Donald Trump argued Friday that the Georgia charges against the former president may need to be dropped if he can't obtain overlapping evidence from Special Counsel Jack Smith’s federal election-subversion case.

Trump attorney Steven Sadow said it is possible under both federal and state law to subpoena records from Smith and the Justice Department if the material is deemed relevant to the Georgia indictment. But he also warned that if he’s denied then court precedent suggests “the remedy is dismissal of the case” brought by Fulton County District Attorney Fani Willis.

"This is a problem," Sadow told Fulton County Superior Court Judge Scott McAfee.

Sadow's arguments during Friday's hours-long hearing follow a motion Trump's legal team filed last week requesting actions by both McAfee and Georgia prosecutors to obtain relevant discovery from the federal case.

Sadow cited a 1981 Georgia Court of Appeals opinion which he said established that a Georgia defendant in the same position as Trump has the right to seek federal documents through a subpoena.

“I would issue a subpoena to both counsel for President Trump in D.C., as well as the Special Counsel’s office, for disclosure of what I want,” Sadow said. “All I would ask for is a list of their discovery, so that we’re able to determine what they have.”

“And if they were to fight that — which, of course, the Justice Department might choose to do — it would come either before your honor for a determination or it would come, if they wanted to remove it, strangely enough, they could remove it to federal court,” Sadow added.

There is “no doubt,” Sadow said, that Smith’s office “has relevant and material information that deals with the allegations in this case.”

If Trump’s defense is unable to access evidence from the federal case, Sadow argued, dropping the charges is one remedy suggested by the 1981 ruling. Other remedies include prohibiting the prosecution from calling certain witnesses, or to wait to try Trump until after the D.C. case is completely concluded, he said. Earlier in Friday’s hearing, Sadow had argued that if Trump were to win the 2024 election, he could not be tried in Georgia until he leaves office in 2029.

Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial is scheduled to begin on March 4, the day before Super Tuesday when 14 states vote including California, Colorado, North Carolina, Texas and Virginia.

The former president is facing 13 state felony charges in the Georgia election-racketeering case, to which he has also pleaded not guilty.

Sadow’s arguments prompted a protracted and inconclusive discussion about the mechanics of whether, and how, the Georgia court and prosecutors might obtain evidence from a federal prosecution.

Assistant District Attorney F. McDonald Wakeford said Willis’ case is independent from “any kind of case that is anywhere else regarding defendant Trump and the other defendants at the table.”  

“We don’t have authority over the Department of Justice — and certainly not a federal judge,” Wakeford said. “At this stage, there is no role for us to play, absent this court directing how we should move forward.”

McAfee did not make any determination on the issue Friday, and said that the questions raised by Sadow were ones to be mindful of as the case moves forward.

“Maybe we’ll have more enlightenment on it if we know what the Special Counsel’s position is on it,” the judge said. “I don’t know who they’d be more open to taking a phone call from.”

Following the discussion between the judge and prosecutors, Sadow told McAfee that he would prepare subpoenas and seek the court’s permission to issue them at a future court date.