Lawfare No Bull

On February 12th, 2024, Judge Scott McAfee held a motions hearing in Fulton County Superior Court. The hearing centered on several motions to quash filed by individuals who received subpoenas to testify or produce documents ahead of an evidentiary hearing on whether district attorney Fani Willis should be disqualified from prosecuting Donald Trump and others. Judge McAfee did not immediately rule on the motions to quash.

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On Jan. 12, Israel delivered oral arguments rejecting South Africa’s claims of Israeli genocide in Gaza in the International Court of Justice (ICJ). In South Africa v. Israel, South Africa alleges that Israel’s conduct in the war in Gaza has violated the 1948 Convention Against Genocide. At this stage of the proceedings, South Africa seeks a directive, or “provisional measure,” from the ICJ that would order Israel to stop operations in Gaza on the basis that South Africa’s claims are plausible and that irreparable harm is possible if Israeli operations continue. 

Among other arguments, Israel’s representatives contend that the ICJ lacks jurisdiction, as there is no “dispute” over whether Israel has committed genocide; the standards of irreparable harm and urgency required to establish provisional measures are not satisfied, as Israel has taken pains to mitigate civilian harm by asking civilians to leave conflict areas and allowing substantial levels of humanitarian aid to pass into Gaza; and provisional measures halting Israeli operations would violate Israel’s inherent right to self-defense.

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On Jan. 11, the International Court of Justice (ICJ) held a public hearing in the case of South Africa v. Israel, on whether Israel is committing acts of genocide in Gaza. In its first public hearing of the case, the ICJ heard the South African legal delegation’s oral arguments, in which they alleged that Israel’s actions in Gaza have violated its obligations under the Genocide Convention of 1948. South Africa also argued that the court should grant the nine provisional measures requested in its complaint against Israel, including ordering the halt of Israeli military operations in the Gaza Strip while the case is ongoing.

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On Dec. 6, the Colorado Supreme Court heard oral arguments in the appeal of the Denver District Court decision that found that former President Donald Trump “engaged in insurrection” but could not be disqualified from primary and general election ballots in Colorado because of the language of Section 3. The arguments in front of the state supreme court centered on whether the presidency is an “office…under the United States,” whether the president is “an officer of the United States,” whether Trump engaged in insurrection, and how the issues may conflict with Trump’s First Amendment rights.  

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On Dec. 5, FBI Director Christopher Wray testified before the Senate Committee on the Judiciary in a hearing entitled “Oversight of the Federal Bureau of Investigation.” The committee questioned Wray about FISA Section 702 reauthorization, sextortion and child sexual exploitation, the rise in hate crimes across America, and more.

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On Dec. 1 in Fulton County, Judge Scott McAfee heard arguments from the State and several of the 15 defendants on a number of motions related to First Amendment concerns, the scheduling of an eventual trial, discovery matters, and general and special demurrers. Judge McAfee did not immediately rule on any of the motions.

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On Nov. 21, in a hearing in Fulton County, Judge Scott McAfee heard arguments on whether Harrison Floyd, the former leader of a group called Black Voices for Trump, should have his bail revoked for using X, formerly known as Twitter, to indirectly communicate with witnesses. Judge McAfee determined that the most appropriate solution is to amend Floyd’s conditions of release, not remand him to custody.

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On Nov. 20, the three-judge panel of the D.C. Circuit Court of Appeals heard oral arguments on the gag order imposed on former President Donald J. Trump by Judge Tanya S. Chutkan in the Jan. 6 case. The three judge panel pressed Trump’s lawyer, D. John Sauer, on whether any limit can be imposed on political speech related to a court proceeding and whether a gag order could be imposed on Trump to proactively protect the people involved in proceedings. The judges questioned Justice Department attorney Cecil Vandevender on the breadth of the gag order. 

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On Nov. 15, Judge Scott McAfee heard arguments from defendants in the Fulton County election interference case on the State’s emergency motion for a protective order and defendant David Shafer’s response in opposition and proposed protective order. The State had proposed a blanket protective order for all discovery, while Shafer proposed a protective order that would only apply to discovery deemed sensitive. The State agreed to Shafer’s proposed order, as did most other co-defendants. The media intervenors in the case lodged a vigorous objection.

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On Nov. 3, in a hearing in Fulton County, Judge Scott McAfee heard arguments on motions from the Georgia Secretary of State, the Fulton County Superior Court Clerk, and the Fulton County Board of Registration and Elections to quash defendant Harrison Floyd’s subpoenas for access to elections data from the 2020 election. During the hearing, Floyd’s counsel withdrew its subpoena of the Board of Elections and Judge McAfee asked the Secretary of State and Superior Court Clerk for more details on the burden these subpoenas would create and how to protect potential personal identifying information.

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