Judge Scott McAfee on Thursday approved an expedited trial for two of Donald Trump's co-defendants in the Georgia election interference case, attorneys Sidney Powell and Kenneth Chesebro, severing their case from those of the other 17 defendants.
Trump and 18 co-defendants were charged last month over their efforts to reverse the ex-president's defeat in the 2020 election in Georgia. Fulton County District Attorney Fani Willis used Georgia's Racketeer Influenced and Corrupt Organizations Act to have all 19 defendants in the case stand trial together.
But Judge McAfee said that severing the remaining 17 defendants was "a procedural and logistical inevitability" and said the courthouse "simply contained no courtroom adequately large enough to hold all 19 defendants," as ABC News reported.
This ruling "was a big win for Trump and the other defendants," Neama Rahmani, former federal prosecutor, told Salon. "They'll get a preview of the witness testimony before they are tried and will be able to more effectively prepare for cross-examination and rebutting the prosecution's arguments." Rahmani also said it was a loss for federal special counsel Jack Smith as well as for Willis, and speculated that Smith might wonder "why Willis took a 'kitchen sink' approach instead of the more targeted strategy that he did, charging only Trump."
Severing the two defendants' cases will have a "series of ramifications," including increasing the workload on the Georgia prosecutors and creating more strain on the state's judicial resources, said Temidayo Aganga-Williams, a white-collar partner at Selendy Gay Elsberg and a former investigator for the House Jan. 6 select committee.
Chesebro and Powell, who are now set to go to trial Oct. 23, appeared in court on Thursday to request that all transcripts of the Georgia special grand jury be unsealed, and that they be allowed to speak to the grand jurors who indicted them in August on charges related to the 2020 election. They appear to be suggesting that perhaps not all the grand jurors had thoroughly reviewed the entire 98-page indictment, which is not entirely implausible given that the jury appeared to reach a decision after meeting for just one day.
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"Their legal strategy is clearly to leave no stone unturned," Aganga-Williams said, adding that in a case of this importance that's actually how it should be" "With a prosecutor's office handling 19 defendants that include a former president, defendants aggressively filing every defensible motion is certainly to be expected." This case will be an "epic legal battle," Aganga-Williams added, and "it is only just beginning."
Judge McAfee suggested that he might allow Chesebro and Powell's defense team to speak to the grand jury, but likely not the defendants themselves. That was the best way, he said, to "accommodate the case law" governing grand jury secrecy while still allowing the defense "to make sure that the grand jury fulfilled its duty in a manner recognized by law," as reported by The Messenger.
Since grand jury proceedings are typically kept confidential, even this concession would be highly unusual. "Chesebro and Powell are likely asking for this information to find shortcomings in how the Fulton County district attorney obtained the indictment," Aganga-Williams said. Even a minor procedural failure on Willis' part could lead to a defense motion to dismissall charges. "This would be a long shot," Aganga-Williams said, but "any effort that forces Willis to start from scratch will surely be worth a try for these defendants."
McAfee has not yet ruled on Chesebro's motion to unseal transcripts from the special grand jury, which is not the same jury that the defense team hopes to address. This would be the first Fulton County panel convened by Willis, which conducted investigations and recommended charges but did not have the power to indict anyone.
Although this trial will not include Donald Trump, Aganga-Williams said the former president will be at great legal risk. "If Willis can successfully handle this first trial, it could spell doom for Trump," Aganga-Williams said, and potential convictions of both Chesebro and Powell could "lead to a cascade of cooperation that only strengthens the state's case" as more co-defendants turn against their leader.
