Georgia judge orders two separate trials for defendants in election subversion case

A Georgia judge ruled Thursday that former President Donald Trump and 16 others will be tried separately from two defendants who are set to go to trial next month in the case accusing them of participating in an illegal scheme to overturn the results of the 2020 election.

Lawyers Sidney Powell and Kenneth Chesebro had filed demands for a speedy trial, and Fulton County Superior Court Judge Scott McAfee had set their trial to begin Oct. 23. Trump and other defendants had asked to be tried separately from Powell and Chesebro, with some saying they could not be ready by the late October trial date.

Fulton County District Attorney Fani Willis last month obtained an indictment against Trump and the 18 others, charging them under the state’s anti-racketeering law in their efforts to deny Democrat Joe Biden’s victory over the Republican incumbent.

Willis had been pushing to try all 19 defendants together, arguing that it would be more efficient and more fair. McAfee cited the tight timetable, among other issues, as a factor in his decision to separate Trump and 16 others from Powell and Chesebro.

“The precarious ability of the Court to safeguard each defendant’s due process rights and ensure adequate pretrial preparation on the current accelerated track weighs heavily, if not decisively, in favor of severance,” McAfee wrote. He added that it may be necessary to further divide them into smaller groups for trial.

The development is likely to be welcome news to other defendants looking to avoid being tied by prosecutors to Powell, who perhaps more than anyone else in the Trump camp was vocal about publicly pushing baseless conspiracy theories linking foreign governments to election interferences.

Another defendant in the Atlanta case, former New York City Mayor Rudy Giuliani, has sought to distance himself from Powell and spoke at length about her in an interview with special counsel Jack Smith’s team in Washington, according to a person familiar with his account who was not authorized to discuss the matter publicly and spoke on condition of anonymity.

Also, Trump-aligned lawyer Eric Herschmann, who in 2020 tried to push back against efforts to undo the election, told the congressional committee investigating the riot at the U.S. Capitol on Jan. 6, 2021, that he regarded Powell’s ideas as “nuts.”

Chesebro and Powell had sought to be tried separately from each other, but the judge also denied request.

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. Powell is accused of participating in a breach of election equipment in rural Coffee County.

The nearly 100-page indictment details dozens of alleged acts by Trump or his allies to undo his 2020 loss in Georgia, including suggesting the secretary of state, a Republican, could help find enough votes for Trump to win the battleground state; harassing an election worker who faced false claims of fraud; and attempting to persuade Georgia lawmakers to ignore the will of voters and appoint a new slate of electoral college electors favorable to Trump.

Further explaining his decision to separate the others from Powell and Chesebro, McAfee said he was skeptical of prosecutors’ argument that trying all 19 defendants together would be more efficient. He noted that the Fulton County courthouse does not have a courtroom big enough to hold 19 defendants, their lawyers and others who would need to be present, and relocating to a bigger venue could raise security concerns.

Prosecutors also had argued that because each defendant is charged under the state’s Racketeer Influenced and Corrupt Organizations Act, or RICO Act, the state plans to call the same witnesses and present the same evidence for any trial in the case. They told the judge last week that they expect any trial would take four months, not including jury selection.

But McAfee pointed out that each additional defendant increases the time needed for opening statements and closing arguments, cross-examination and evidentiary objections. “Thus, even if the State’s case remains identical in length, and the aggregate time invested by the Court is increased, the burden on the jurors for each individual trial is lessened through shorter separate trials,” he wrote.

The judge also noted that to satisfy the demands by Powell and Chesebro for a speedy trial, he will try to have a jury seated by Nov. 3. “With each additional defendant involved in the voir dire process, an already Herculean task becomes more unlikely,” he wrote.

McAfee also pointed to the fact that five defendants are currently seeking to move their cases to federal court, and litigation on that issue is ongoing. If they were to succeed midway through a trial in the state court, it’s not clear what the impact would be, McAfee wrote.

U.S. District Judge Steve Jones last week rejected a bid by Mark Meadows, Trump’s last White House chief of staff, to move his case to federal court; Meadows is appealing that ruling. The other four have hearings before Jones scheduled next week.

Meadows and three of the others had asked McAfee to halt state court proceedings while their efforts to move to federal court are pending. The judge denied that request, saying he does not intend to stay pretrial litigation in the meantime.

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