The first televised court hearing in the Georgia racketeering case against former U.S. president Donald Trump and 18 others laid bare the complexities of trying multiple defendants accused of a criminal conspiracy — something prosecutors said will take at least four months.
In an afternoon proceeding Wednesday, Fulton County Superior Court Judge Scott McAfee denied motions brought by two of the defendants to be tried independently. Both of them are set to stand trial beginning Oct. 23, after they requested speedy trials.
The question now is whether the other 17 defendants, including Trump, will also stand trial at that time — a prospect McAfee appeared skeptical of. He gave prosecutors until next Tuesday to submit a brief on whether the October date should be a trial of two defendants or 19.
Prosecutors will also have to outline how they intend to proceed if one or more of the defendants succeed in their efforts to remove their cases to federal court. They did not appear to have a clear answer for how they would contend with appeals in those motions, which McAfee suggested could tie up the overall case for months.
Wednesday was supposed to be arraignment day for the defendants, with hearings set to begin in the morning. By Tuesday, all 19 had pleaded not guilty in filings with the court and waived their rights to an arraignment hearing.
The afternoon proceeding was called to hear the motions to sever from lawyers Kenneth Chesebro and Sidney Powell, but McAfee had asked prosecutors to provide estimates on how they intend to try their entire case against all defendants, including timeframes.
Special prosecutor Nathan Wade said it would likely take four months for the state to present its case, not including jury selection, and that prosecutors would call more than 150 witnesses.
But McAfee noted the entire trial may end up taking twice as long, given each of the defendants were entitled to cross-examination and to call their own witnesses.
Wade argued trying each of the defendants individually, or in small groups, would take even longer. He added such a move would also risk unnecessarily retraumatizing victims of the alleged crimes if they are called to testify and be cross-examined up to 129 separate times.
Although the 41 charges brought against Trump and his co-defendants are mostly related to alleged election fraud and pressuring elected officials to break their oaths of office by helping them overturn Trump’s 2020 election loss in Georgia, they also include alleged harassment of Atlanta election workers who were falsely accused of fraud.
McAfee also noted the mounting number of defence motions and counter-motions that are being filed by the defendants, which will have to be addressed one at a time leading up to the Oct. 23 trial for Chesebro and Powell and likely beyond.
The legal wrangling has included separate requests to speed up, slow down or sever individual cases from the broader criminal conspiracy alleged in Fulton County District Attorney Fani Willis’ sprawling indictment brought last month.
There is also the question of whether the case against some or all of the defendants will remain in state court.
Mark Meadows, who served as Trump’s White House chief of staff, and four others are seeking to move the charges against them to federal court. Those include the three defendants accused of posing as “fake electors” in an effort to sway the Electoral College in Trump’s favour, even as Georgia certified electors for the actual victor, Joe Biden.
Notably, Meadows and the accused fake electors have argued in testimony and court filings that their actions were taken at Trump’s behest.
Willis, who has argued Meadows’ actions are clear violations of state law that fell outside his duties as chief of staff, responded to one of the other defendants’ request for removal, Shawn Still, by saying he had failed to even prove he was acting as a federal officer.
What could happen next?
A federal judge in Georgia is expected to rule at any time on Meadows’ removal argument, which was heard in court last month. Meadows argued his actions detailed in the indictment fell under his role as a federal official.
A ruling in Meadows’ favour would pave the way for Trump and other defendants to also move their cases to federal court, which would draw from a broader jury pool that may include more Republican jurors than Fulton County, which includes the city of Atlanta and is heavily Democratic.
It would also mean a trial that would not be photographed or televised, as cameras are not allowed inside. McAfee has already ruled all proceedings inside his courtroom for the case, including Wednesday’s hearing, can be broadcast live.
But a federal court move does not open the door for Trump, if he’s re-elected in 2024, or another president to pardon anyone in the case because any convictions would still happen under state law.
Willis, meanwhile, is moving quickly. She filed court papers on Tuesday that requested the use of questionnaires in jury selection for any upcoming trial in the case.
Also Tuesday, Chesebro filed a motion to dismiss the charges against him. He’s 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. He argues that his actions fall under federal authority and that the supremacy clause of the U.S. Constitution means he can’t be prosecuted under state law for those actions.
The Georgia charges marked Trump’s fourth indictment since he launched his re-election campaign for president in November last year. He has pleaded not guilty to each of them.
— with files from the Associated Press
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