ATLANTA - The judge overseeing the Georgia case that accuses former President Donald Trump and others of illegally trying to overturn the 2020 election in the state on Wednesday denied requests by two of the 19 defendants to be tried alone, instead saying the pair would be tried together starting next month.
Since lawyers Kenneth Chesebro and Sidney Powell have both filed speedy trial demands, Fulton County Superior Court Judge Scott McAfee said their trial would begin Oct. 23, but he seemed skeptical of prosecutors’ arguments that all 19 defendants could be tried together that soon.
"It just seems a bit unrealistic to think we can handle all 19 in 40 days. That’s my initial reaction," he said.
The hearing provided insight into how the case could play out, with prosecutors estimating a trial would take four months and that they’d call more than 150 witnesses. It was also broadcast live on television and on the judge’s YouTube channel, a marked difference from the other three criminal cases against Trump, where cameras have not been allowed in the courtroom during proceedings.
Special prosecutor Nathan Wade, who provided the four-month estimate, said that didn’t include jury selection and added that whether or not defendants choose to testify could affect timing. But he said he expects a trial to take that long regardless of how many defendants it includes, arguing that the indictment was brought under Georgia’s anti-racketeering law and prosecutors would seek to prove the entire alleged conspiracy against each defendant.
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In announcing the wide-ranging 41-count indictment last month, Fulton County District Attorney Fani Willis said she wants to try all 19 defendants together. But the legal maneuvering that has begun in the three weeks since the indictment was returned underscores the logistical complexity inherent in such a sprawling indictment with so many defendants.
Already some of those charged are seeking to speed up the process, some are trying to separate themselves from the others accused in the alleged conspiracy and some are trying to move the case from a state court to federal court. All have pleaded not guilty.
The judge said Chesebro and Powell would be tried together starting on the Oct. 23 trial date already set for Chesebro to comply with their demands for a speedy trial. He gave prosecutors until Tuesday to submit a brief on whether it should be a trial of two defendants or 19.
Lawyers for Chesebro and Powell argued separately that their clients don’t know each other and are not accused in the indictment of having participated in the same acts. They said it would be like conducting two distinct trials at the same time and that the evidence against one of them could taint the other.
Chesebro attorney Scott Grubman said he understands that the state brought the case under the Racketeer Influenced and Corrupt Organizations Act, or RICO, which has particular rules, but he argued "that should not override Mr. Chesebro’s right to a fundamentally fair trial."
Chesebro is accused of working on the coordination and execution of a plan to have 16 Georgia Republicans sign a certificate declaring falsely that Trump won and declaring themselves the state’s "duly elected and qualified" electors. Another Chesebro attorney, Manny Arora, called that the "intellectual" part of the case, which had nothing to do with any "shenanigans" on the ground in Georgia and said his defense would rely on paperwork and legal opinion.
Powell is accused of participating in a breach of election equipment in rural Coffee County. She’s alleged to have hired and paid a computer forensics team that copied data and software from the election equipment without authorization.
Her attorney, Brian Rafferty, said the evidence will show she was "not the driving force" behind that effort. He said he’s afraid the evidence he presents will get "washed away" by the technical evidence produced by Chesebro’s defense team if they’re tried together.
Fulton County Deputy District Attorney Will Wooten said he understands the defense arguments against having their clients tried together.
"The problem for them is that it doesn’t matter because it’s all part of the same overarching RICO conspiracy," he said, explaining that any evidence and law that can be used against one defendant can be used against all of them because they are all liable for all of the acts alleged in the indictment.
Several other defendants have also asked to be tried separately or in small groups, and Trump, the early front-runner in the 2024 Republican presidential primary, has asked to be tried apart from anyone who files a speedy trial demand.
Meanwhile, former White House chief of staff Mark Meadows was in federal court last week arguing that he was acting in his capacity as a federal official and his case should be heard by a federal judge. U.S. District Judge Steve Jones has yet to rule on that request. Four other defendants who are also seeking to move their cases to federal court have hearings set before Jones later this month.
McAfee raised concerns about what that fight by some defendants to have their cases moved to federal court could mean for the rest of the case, saying appeals and final decisions on that issue could take months.
Whenever and wherever any trial in the case ultimately takes place, jury selection is likely to be a challenge. Jury selection in a racketeering and gang case brought last year by Willis began in January and is still ongoing. In another big racketeering case that Willis tried nearly a decade ago against former Atlanta public schools educators, it took six weeks to seat a jury.
Willis’ team on Tuesday asked McAfee to allow the use of a jury questionnaire that prospective jurors would have filled out before they show up for jury selection, writing in a court filing that it "will facilitate and streamline the jury selection process in many respects." Prospective jurors may be more comfortable answering personal questions on paper than in open court and lawyers for both sides could agree that certain jurors aren’t qualified without additional questioning, prosecutors said.