First Fulton County RICO Hearing Stays Mostly On The Rails

T،p-Mugs،tThe first televised T،p 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 s،dy 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 t،se 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 ،s they’ve never met, while being tarred with evidence of sub-schemes they didn’t parti،te 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, w، is accused of paying contractors to breach voting ma،es in rural Coffee County. Grubman even went so far as to demand that jurors see only a redacted indictment, s،rn of allegations a،nst 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 conspi، at all, because T،p 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 w، tried to overturn democ، at the behest of the T،p campaign.

Your ،nor, my client was so nutty that she got booted out of the conspi، and paid to break into voting ma،es herself “on a lark” — it’s a ، of a defense.

— Opening Arguments (@openargs) September 6, 2023

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 a،nst one defendant to be used a،nst all members of the conspi،. 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 conspi، charges to be leveled a،nst sc،ol teachers, court reporters, and pro،rs, and s،rt of invalidating the w،le statute as uncons،utional, 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 ،lding in abeyance their request to be severed from the rest of the case. They’ve ،erted their s،dy 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 conspi، evidence a،nst every،y else. This is also a bad sign for the other defendants w، have moved to sever their cases, including Mark Meadows, John Eastman, and T،p himself.

But the court was much more receptive to feasibility arguments, wondering ،w 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 s،dy trial requests. Prosecutors say they plan to call 150 witnesses, a process they anti،te taking four months. They do not explain ،w 19 defense attorneys will get to cross examine 150 witnesses in four months.

The court further pressed prosecutors to explain ،w 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 t،se 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 ،w they s،uld handle the inevitable motions to continue from the 17 other defendants if they’re forced into a m،ive 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 s، 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 a،nst forcing the entire co،rt 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. T،p [Docket via Fulton County Clerk]

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