When we recently examined Fani Willis’ sprawling RICO prosecution in Georgia against Donald Trump and 18 others, I made the following observation: “There’s not going to be one 19-defendant trial, and there aren’t going to be 19 single-defendant trials.”
After Wednesday’s state court hearing with Judge Scott McAfee, who’s presiding over the election interference case, it appears that observation will hold true.
It was there that McAfee rejected efforts from lawyers Sidney Powell and Kenneth Chesebro to separate or “sever” their cases from each other. Those two defendants had moved for speedy trials, but they didn’t want to go to trial together. They argued their charges were basically unrelated and that it would therefore be unfair to lump them together in front of the same jury. Though he acknowledged the inconvenience to the defendants of sitting through such a joint trial, McAfee found there wasn’t sufficient legal basis to sever.
As the hearing came to a close on Wednesday, McAfee said he did not find severance “necessary to achieve a fair determination of the guilt or innocence for either defendant in this case.”
But notably, Fulton County prosecutors at the hearing insisted on not only trying Powell and Chesebro together in October; they want to try all 19 defendants together. McAfee sounded skeptical of that possibility but he’s letting the state file a brief on it to try and convince him. The prosecution said their case could take at least four months, not including jury selection, with more than 150 witnesses.
Again, I’ll reiterate there’s no good reason to expect a 19-defendant trial in this case, much less in October. To be sure, it’s reasonable to want to try defendants together when they’re all charged in the same conspiracy. But in addition to the serious practical concerns of trying that many people at once, it’s improper to force defendants into such speedy trials who didn’t ask for them. And there’s another issue hanging over the prosecution that McAfee brought up at the hearing: removal. That is, the attempt by some defendants on the RICO indictment to move their state charges to federal court. We’re waiting for a ruling any day on that issue in co-defendant (and Trump White House chief of staff) Mark Meadows‘ case. McAfee observed that speeding ahead to trial without a ruling on the removal issue could be dangerous for the prosecution, noting the possibility of double jeopardy issues if a trial moves forward in state court but it’s then decided it should have proceeded in federal court. Indeed, it’s an open question whether one defendant winning removal means the whole case would then go to federal court. We’ll learn more about that possibility if the federal judge sides with Meadows or anyone else on the indictment pushing for removal. But in terms of what we know right now, it’s looking like a trial for Powell and Chesebro in October. What that means for the other 17 defendants remains to be seen, but there’s no good reason to think those two defendants will have company at the defense table if their trial actually gets underway next month.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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