A Georgia judge said Wednesday that he plans to forge ahead with an Oct. 23 trial for two of Donald Trump’s 18 co-defendants in a sprawling racketeering case stemming from the 2020 election, but he’s concerned about prosecutors’ call to bring all the defendants to trial together on such an expedited schedule.
“It just seems a bit unrealistic to think that we can handle all 19 in forty-something days,” Fulton County Superior Court Judge Scott McAfee said at a hearing in Atlanta on efforts by the two Trump allies — attorneys Sidney Powell and Kenneth Chesebro — to split their cases from the larger group.
The proceeding, which was livestreamed on YouTube, was the first significant hearing in the extraordinary case. And the scope of the case came into sharper focus as prosecutors revealed just how long they expect it to last. They said the trial of Trump and the other defendants — on charges that they conspired to subvert the 2020 election — will take about four months and feature testimony from more than 150 witnesses.
“That is our time estimate,” prosecutor Nathan Wade told McAfee, adding that the prediction didn’t include a likely lengthy process for selecting a jury.
Willis requested last month that the trial begin on March 4. But, last week, a judge in Washington, D.C. scheduled another Trump criminal trial — his federal election conspiracy case — on that date.
McAfee expressed concern Wednesday that any trial he conducts in the Georgia case could wind up being moot if one or more defendants succeed in a separate legal maneuver: their pending bids to shift the case to federal court.
A federal judge in Atlanta held a hearing last week on one of those requests, from former White House Chief of Staff Mark Meadows, who is one of the 19 charged in the state case. No ruling has been issued, but McAfee said potential appeals likely mean months of uncertainty over whether the state court proceedings are valid.
“It could potentially even be a six-month turnaround just for the 11th Circuit to come up with a decision,” said McAfee, referring to the Atlanta-based federal appeals court that would handle such appeals.
“Where does that leave us in the middle of a jury trial?” the judge asked, although he also seemed to concur that Powell and Chesebro have a right under Georgia law to have their trials start next month as they have demanded.
McAfee denied requests from Powell and Chesebro to be tried separately from one another. The judge said both will face jurors together on Oct. 23.
“We’re planning to make that Oct. 23 trial date stick,” the judge said.
He has not yet ruled, however, on when the other 17 defendants in the case will go to trial, and whether any or all of those defendants should stand trial separately from Powell and Chesebro. Lawyers for Trump have said an October trial date for Trump would not give them nearly enough time to prepare. Prosecutors said they expected to put on the same lengthy case against any defendants tried separately, raising the prospect of multiple monthslong trials.
The judge did reject claims by attorneys for both Powell and Chesebro that trying the pair side-by-side would be unfair, since they both face disparate charges that have little to no factual overlap.
Chesebro is charged for his role in crafting Trump’s strategy to send false slates of presidential electors to Congress, an effort to stoke a controversy on Jan. 6, 2021, that could have disrupted the transfer of power to Joe Biden. Powell is charged for her alleged involvement in a breach of election equipment in Georgia’s Coffee County. The two don’t know each other, their lawyers added.
A defense attorney for Chesebro portrayed prosecutors’ effort to link the varied allegations under a broad conspiracy count as dangerously thin.
“Before we know it, millions of people, literally millions of people, could’ve been charged in this conspiracy,” lawyer Scott Grubman said. “Half of the United States took some act towards electing Donald Trump. … If that were the only thing that mattered in terms of connecting these as a common conspiracy, there would be no rules of due process.”
Chesebro’s attorneys also said prosecutors clearly want Trump sitting at the table with the other defendants.
“The state wants a case against Donald Trump and all these people together. The state wants to make this case about Donald Trump,” Grubman said.
Another lawyer for Chesebro described the allegations against him as little more than “paperwork” violations and said he’d suffer by being tried alongside Powell.
“Her charges are way more provocative versus sort of the boring old charges that we have,” defense lawyer Manny Arora said.
An attorney for Powell, Brian Rafferty, also argued the two defendants should be tried separately but insisted it was his client who’d look bad by being associated with the allegations against Chesebro.
“Ms. Powell had nothing to do with most of it,” Rafferty said. “She has nothing to do with the Electoral College aspects of this. … All of my effort is going to get washed away in days or weeks of testimony perhaps about the Constitution and whether or not and under what circumstances can alternative electors can be put in place.”
Prosecutors said the distinction in the charges Powell and Chesebro face is immaterial since they’re both charged with conspiring toward the same unlawful goal: keeping Trump in power despite his defeat in the 2020 election. That racketeering conspiracy charge permits jurors to consider separate streams of evidence against all alleged co-conspirators, even if they didn’t know what others were doing, prosecutors argued.
“Anytime a person enters into a conspiracy they are liable for all of the acts against all of their co-conspirators,” prosecutor Will Wooten said. “Evidence against one is evidence against all.”
Wooten said it wasn’t surprising that all the alleged co-conspirators weren’t involved in each of the schemes to keep Trump in power.
“The conspiracy evolved,” the prosecutor said. “One thing didn’t work, so we move on to the next thing.”
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