It may be unfeasible for prosecutors to try former President Donald Trump and all his 18 co-defendants together in the Georgia case against him, a judge presiding over the case has suggested. The prosecutors may thus be forced to try their case at least twice.
The case was brought on Aug. 14 by Fulton County District Attorney Fani Willis. She alleged that the efforts of President Trump and more than a dozen others to challenge the results of the 2020 elections amounted to a criminal enterprise.
The prosecutors initially asked for the trial to start on March 4, 2024, but moved the date to Oct. 23, 2023, after co-defendants Kenneth Chesebro, former lawyer to President Trump, and Sidney Powell, a former federal prosecutor who challenged the 2020 election, asked for speedy trial.
The judge, Scott McAfee, previously approved the Oct. 23 trial date for Mr. Chesebro, but not for the other defendants.
Lawyers for other defendants have indicated that they won’t be ready for trial by that date.
President Trump’s lawyers filed a motion on Aug. 31 to have his case tried separately from Mr. Chesebro and Ms. Powell because the expedited trial schedule would “substantially” affect his ability to get a fair trial.
In addition, the judge said he expects a flurry of pre-trial issues that will need to be litigated and mentioned the fact that several defendants have asked to have the case removed to federal court, and while those requests are pending, the case can't proceed to judgment.
During a Sept. 6 hearing, the judge gave the prosecutors until Sept. 12 to flesh out for him some issues regarding the removal proceedings' effects on the case.
Also during the hearing, the judge denied the request of Mr. Chesebro and Ms. Powell to have their trials separated from one another. Instead, he put Ms. Powell on the same Oct. 23 trial schedule as Mr. Chesebro.
While the prosecutors still push to have all 19 defendants tried on that same date, the judge said he was “very skeptical” about that plan, indicating that the two defendants may need to be tried separately.
The prosecutors have vehemently opposed that eventuality, arguing that they would need to present the same exact case repeatedly because a racketeering conspiracy allows them to use evidence of the entire conspiracy against each defendant.
They expect that the trial will take four months, excluding jury selection, and involve more than 150 witnesses for the prosecution alone.
Lawyers for Mr. Chesebro and Ms. Powell argued that a joint trial would be prejudicial to their clients because they weren’t involved in most of the activity alleged in the indictment.
Mr. Chesebro is accused of devising and executing a strategy to set up an alternative slate of electors in several states that President Trump contested and then use the alternative slates “for disrupting and delaying” the counting of electoral votes by Congress.
Ms. Powell is accused of getting a data forensic company to access and copy data from election machines and computers in Coffee County, Georgia, without authorization. Her lawyer, Brian Rafferty, pushed back against the allegations, saying Ms. Powell had “very little” if any involvement in the Coffee County matter.
“My case is going to depend on my ability to present to a jury that she had nothing to do with what the government says she was involved in Coffee County. The evidence is not going to show what they say,” he said.
“But all of that, all of my efforts, is going to get washed away in days of weeks of testimony [that pertains to other defendants].”
The only commonality between the alleged actions of Mr. Chesebro and Ms. Powell is that they were both in pursuit of “electing Donald Trump,” said Scott Grubmann, lawyer for Mr. Chesebro.
“Half of the United States took some act toward electing Donald Trump.”
If the prosecutors were right, it would be nearly impossible for a defendant to get a separate trial in a Racketeer Influenced and Corrupt Organizations Act (RICO) case, and the rules of due process would be undermined, he said.
“It means that the state of Georgia and the various district attorneys throughout the state can use the RICO statute, can take three, four, five, six, seven different conspiracies and at their sole discretion with no oversight by any court say that they’re one, bring them in one indictment, and then we’re all stuck together,” he said.
Mr. Chesebro also filed a motion on Sept. 5 to have the case dismissed under the U.S. Constitution’s supremacy clause. He argued that after the “Safe Harbor” deadline was established by the Electoral Count Act, which fell on Dec. 8, 2020, it was up to Congress to resolve any disputes over electoral votes, and thus the state can’t charge him for his efforts to affect that process after that date.
President Trump is also facing a criminal case in Washington that targets much of the same effort to challenge the 2020 election, as well as another case in Florida regarding his alleged improper retention of national defense information from his term in office, and another case in New York alleging false bookkeeping entries.