Courts

First Fulton County RICO Hearing Stays Mostly On The Rails

Ken Cheseboro and Sidney Powell are going to trial together, and they're not happy about it.

By Liz Dye on September 06, 2023 5:47 pm

Trump-MugshotThe first televised Trump case kicked off this afternoon in Fulton County Superior Court, with a hearing before Judge Scott McAfee that was livestreamed on YouTube. It was a mostly staid affair which served to highlight the inherent conflict between Georgia’s sweeping RICO law and its guarantee of a right to speedy trial. To wit, it seems nigh impossible for a law which allows 19 disparate defendants to be prosecuted together to coexist with a statute allowing those defendants to force prosecutors to go to trial in 60 days.

At issue today was the demand by attorneys Sidney Powell and Kenneth Chesebro to be severed from their 17 codefendants, and each other. Both leaned into the manifest “unfairness” of forcing them to spend months in court, sitting next to weirdos they’ve never met, while being tarred with evidence of sub-schemes they didn’t participate in.

Scott Grubman, at attorney for Chesebro, one of the architects of the fake electors scheme, argued that it would be prejudicial for his client to be forced to go to trial with Kraken lawyer Sidney Powell, who is accused of paying contractors to breach voting machines in rural Coffee County. Grubman even went so far as to demand that jurors see only a redacted indictment, shorn of allegations against the other co-defendants, and claimed it would be reversible error for the court not to sever Chesebro and allow him to stand trial alone. Asked for evidence of this last claim, he was forced to admit he had none pertaining to RICO cases.

Powell’s attorney Brian Rafferty argued that his client wasn’t a part of the conspiracy at all, because Trump called her crazy and exiled her from the campaign after she ranted about dead Venezuelan dictators rigging American elections. In Rafferty’s telling, Powell worked to reverse Joe Biden’s win “on a lark,” and thus it would violate due process to force her to stand trial with the other defendants who tried to overturn democracy at the behest of the Trump campaign.

Arguing for the Fulton County District Attorney, Deputy DA Will Wooten dismissed these claims as nonsensical, noting that Georgia’s RICO law explicitly allows evidence against one defendant to be used against all members of the conspiracy. Put simply, the prejudice is kind of the point. Which is why virtually none of the cases cited by the defendants in support of their severance demand relates to RICO charges. The state has enacted a law allowing conspiracy charges to be leveled against school teachers, court reporters, and protesters, and short of invalidating the whole statute as unconstitutional, these election defendants are stuck with it.

And so Judge McAfee issued a bench ruling refusing to sever Chesebro and Powell from each other and holding in abeyance their request to be severed from the rest of the case. They’ve asserted their speedy trial rights to be tried in October, and they’re going to get it. But they’re pretty clearly not going to get out from under the conspiracy evidence against everybody else. This is also a bad sign for the other defendants who have moved to sever their cases, including Mark Meadows, John Eastman, and Trump himself.

But the court was much more receptive to feasibility arguments, wondering how on earth it would be possible to try 19 defendants together in just five weeks, as the Fulton County DA said she would to do after Chesebro and Powell filed their speedy trial requests. Prosecutors say they plan to call 150 witnesses, a process they anticipate taking four months. They do not explain how 19 defense attorneys will get to cross examine 150 witnesses in four months.

The court further pressed prosecutors to explain how they could go forward with an October trial when multiple defendants are at this very moment seeking to have their cases removed to federal court. Even if US District Judge Steve Jones remands those cases, the defendants are quite likely to appeal to the Eleventh Circuit, and the appeals process is unlikely to be resolved before November. When asked how they should handle the inevitable motions to continue from the 17 other defendants if they’re forced into a massive trial next month, prosecutors argued that this issue was not currently before the judge. But it was clearly on Judge McAfee’s mind, as he said that he intends to start issuing scheduling orders for the other 17 defendants within the next week or so.

As of now, Chesebro and Powell are stuck with each other. But the court seems to be strongly leaning against forcing the entire cohort of defendants to go to trial next month. Meanwhile, we’ll be treated to weekly episodes of the newest can’t-miss YouTube courtroom drama.

See you next week, same Bat time, same Bat channel.

State of Georgia v. Trump [Docket via Fulton County Clerk]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.