The case was brought on Aug. 14 by Fulton County District Attorney Fani Willis, alleging that the challenges mustered by President Trump, Ms. Powell, and 17 others against the election results amounted to a racketeering conspiracy.
Much of the indictment focused on the efforts to set up alternative slates of electors in several states, including Georgia, and then allegedly use them “for disrupting and delaying” the counting of electoral votes by Congress.
Ms. Powell isn’t alleged to have partaken in those activities, but rather of getting a data forensics company to access and copy data from election machines and computers in Coffee County, Georgia, without authorization on Jan. 7, 2021.
Based on those allegations, Ms. Powell faces charges of a racketeering conspiracy, conspiracy to commit election fraud, conspiracy to commit computer theft, conspiracy to commit computer trespass, conspiracy to commit computer invasion of privacy, and conspiracy to defraud the state.
Ms. Powell’s lawyer, Brian Rafferty, vehemently denied the allegations.
“No data was stolen, there was no fraud, and nothing was done without authorization,” Mr. Rafferty stated in the motion. “Because the State cannot prove an essential element of each offense, these Acts and Counts of the Indictment must be dismissed.”
The motion states that “both the Election Supervisor for the county and the Board authorized the review” and that the state regulations entrust county election officials with election equipment maintenance.
“One only needs common sense to know that when permission is given to engage in the conduct being prosecuted, there can be no crime,” it reads.
The indictment alleges that Ms. Powell paid the computer forensics firm, SullivanStrickler, and "caused" it to perform the work in Coffee County. But Mr. Rafferty suggested that she didn’t specifically authorize the firm to do it.
“No one actually involved or present for the Coffee County review had spoken to Ms. Powell about any of it,” he argued.
“Ms. Powell’s counsel also believes there are text messages and other documents, including grand jury testimony ... that not only show authority was given, but also demonstrate that Ms. Powell did not agree with anyone to access the Coffee County machines.”
Because all the alleged offenses require some form of criminal intent, such as willfulness or lack of authorization, they cannot stand when the people involved believe they had the requisite permissions, according to Mr. Rafferty.
“The State has not pled facts to show and cannot prove an essential element of each of these offenses: that Ms. Powell knew they were done without authority, that anything was stolen, or there was any ‘fraud,’” he said.
“Thus, the evidence would be insufficient as a matter of law to establish the offenses charged.”
Last week, Mr. Rafferty asked the court to try Ms. Powell separately to avoid evidence presented against other co-defendants to prejudice the jury against her.
“Ms. Powell’s name appears maybe a dozen times in this indictment. She has nothing to do with the electoral college aspects of this which is going to involve all sorts of complex testimony about constitutional issues and things of that nature. Her only involvement, as alleged by the government, is what happened in Coffee County and even that they have wrong,” he said.
Ms. Powell and another defendant, Kenneth Chesebro, have asked for a speedy trial, while President Trump has waived his right to a speedy trial, setting the stage for Ms. Powell and Mr. Chesebro to be tried separately, beginning on Oct. 23, while the rest of the defendants seek a later trial date.
The prosecutors have pushed to try all 19 defendants together, arguing that their racketeering conspiracy case applies to each individual defendant and they would need to present it in its entirety for each separate trial.
Superior Court Judge Scott McAfee, however, has expressed skepticism that the entire case could be brought to trial in just over a month, particularly because several defendants have asked for the case to be removed to federal court.
Co-defendant Mark Meadows, former chief of staff to President Trump, had his removal request denied, although immediately appealed it to the 11th Circuit Court. At least three other defendants have filed similar requests, with a hearing scheduled for one of them, former Justice Department official Jeffrey Clark. Others, including President Trump, have indicated they may follow suit.
“It could potentially even be a six-month turnaround just for the 11th Circuit to come up with a decision,” Judge McAfee said last week, questioning whether the prosecutors could run into double jeopardy issues if the case is eventually removed while the state trial is already underway.