Takeaways from the first Fulton County hearing on the Trump election subversion case
Fulton County Superior Judge Scott McAfee hears motions from attorneys representing Ken Chesebro and Sidney Powell in Atlanta on September 6.
By Jeremy Herb, CNN
(CNN) — The shape of the sprawling Fulton County, Georgia, trial against former President Donald Trump and 18 co-defendants began to emerge Wednesday at the first televised hearing in the case since the indictment was filed last month.
The Fulton County district attorney’s office said it’s planned a four months-long trial with more than 150 witnesses, while defense attorneys for two of the defendants, pro-Trump lawyers Kenneth Chesebro and Sidney Powell, argued their cases should be severed from the other defendants.
The state judge presiding over Trump’s election subversion case, Scott McAfee, denied the motion for Chesebro and Powell – who have both filed to hold a speedy trial – to sever their cases from each other, but he was skeptical of the district attorney’s desire to hold a trial for all 19 defendants beginning next month.
McAfee said he hopes to decide key questions on the trial schedule and breaking up the 19-defendant case by early next week.
Here are takeaways from Wednesday’s hearing:
Judge skeptical of a quick and joint trial
McAfee expressed skepticism about Fulton County District Attorney Fani Willis’ desire to hold a joint trial for all 19 defendants in October.
The judge has already set a trial date for Chesebro on October 23 after he made a speedy trial request under Georgia law, and Willis responded with a motion that all 19 defendants should be tried at the same time.
McAfee didn’t deny that motion – but he was dubious during Wednesday’s hearing.
“It just seems a bit unrealistic that we can handle all 19 (defendants) in 40-something days,” McAfee said.
Prosecutor Nathan Wade threw out some big numbers at Wednesday’s hearing: The Fulton County district attorney’s office expects its case against the 19 defendants would take about four months – and prosecutors expect to call more than 150 witnesses.
What’s more, prosecutors said that the case would be the same whether it is against one defendant or all 19 – as they argued against severing defendants into separate trials.
McAfee, however, thought the timeline was very optimistic, saying “it could easily be twice that,” given the multiple defendants in the case.
Judge denies bids to sever Powell from Chesebro
While McAfee suggested he would separate Powell and Chesebro from the other 17 defendants, he ruled from the bench Wednesday denying their motions to sever their cases from one another.
McAfee ruled that Powell and Chesebro will go to trial together on October 23.
“Based on what’s been presented today, I am not finding the severance for Mr. Cheseboro or Powell is necessary to achieve a fair determination of the guilt or innocence for either defendant in this case,” McAfee said.
He also said that two lengthy trials would clog up the court calendar and “inconvenience” jurors.
Still, Michael Moore, a CNN legal analyst and former federal prosecutor, said it was a “good day” for the defendants, because they appeared poised to sever their cases from the other 17 defendants.
“He all but severed their case from the other defendants,” Moore said. “He essentially said, ‘File your brief by Tuesday, and I’m going to have scheduling orders going out by the end of the week.’”
Defendants are pointing the finger at one another
The attorneys for Chesebro and Powell each took the same strategy during Wednesday’s hearing: distancing their client from the other co-defendants.
Manny Arora, who represents Chesebro, argued that his client was not involved in most of the conspiracy alleged by Fulton County prosecutors, framing Chesebro as a more rational actor than other co-defendants, specifically Powell.
In 2020, Chesebro worked on the Trump campaign’s efforts to undermine the election results.
“Essentially – from what I understand from the public record – she was fired before this conspiracy actually even started up because she said something that was supposedly crazy and Trump people got rid of her,” Arora said of Powell.
Arora noted that Chesebro had never met Powell and had never been to Coffee County, Georgia, where a breach of voting systems is part of the allegations in the indictment against Powell.
When Powell’s attorney, Brian Rafferty, spoke, he made the same point, saying Powell didn’t know Chesebro and had no involvement in the fake elector allegations against Chesebro.
Rafferty argued that Powell was “not the driving force” behind the breach of voting machines in Coffee County, despite evidence put forward by prosecutors in support of allegations she helped coordinate and fund the effort.
But he claimed that his arguments would be “washed away in days and weeks of testimony about the Constitution” and the fake elector scheme.
Prosecutor Will Wooten argued that because the district attorney’s office charged a racketeering case under Georgia’s RICO – racketeer influenced and corrupt organizations – law, all of the evidence against each of the defendants is connected.
“All of the evidence is admissible against all of the defendants,” Wooten said.
“Anytime a person enters into a conspiracy, they are liable for all of the acts of all of their co-conspirators,” he added. “Evidence against one is evidence against all.”
Wooten said that the case would be the same regardless of how many defendants were being tried at the same time.
“The state’s position is that whether we have one trial or 19 trials, the evidence is exactly the same, the number of witnesses is the same,” he said.
The Trump factor
Trump’s attorneys were not present at Wednesday’s hearing, but his role in the case could not be ignored.
Trump is at the center of the Fulton County prosecutors’ alleged conspiracy, even as they charged 18 other co-defendants for taking part in efforts to overturn the 2020 election result.
Special counsel Jack Smith took a different approach in his federal election subversion case, charging Trump alone and including six unindicted co-conspirators – several of whom are now Trump’s co-defendants in Fulton County.
Scott Grubman, an attorney for Chesebro, suggested Trump’s presence in the Fulton County case could cloud how a jury views the other defendants.
“The state wants a case against Donald Trump and all these people together. The state wants to make this case about Donald Trump,” Grubman said.
Grubman went on to argue that Chesebro is not a politician, and was previously unknown to the public. “Now to force him to sit here in a trial where there’s evidence of all these other things is just not fair,” he said.
Meadows’ bid to federal court looms
McAfee acknowledged the prospect that all 19 defendants will not remain in his courtroom – another complicating factor to scheduling a trial or trials – for the sprawling racketeering case.
A federal judge is soon expected to rule on former White House chief of staff Mark Meadows’ motion to move his case to federal court, a bid that could have implications for the rest of the defendants.
McAfee said that the efforts to move cases to federal court could complicate the district attorney’s desire to try all of the defendants quickly, in addition to the expected flurry of pretrial motions.
“To charge ahead … might be risky,” McAfee said.
“Where does that leave us in the middle of a jury trial?” he asked after raising the prospect that a judge rules in favor of moving a case to federal court.
Not long after Wednesday’s hearing ended, Meadows filed a motion asking the state judge in Georgia to halt all proceedings against him until there is a final decision – including appeals – on his bid to move his case to federal court.
In addition, three more defendants – Robert Cheeley, Jeffrey Clark and Shawn Still – asked the judge Wednesday to sever their cases from Chesebro and Powell.
McAfee asked the lawyers to return next week to work through more pre-trial issues and said he expected they would “keep having these weekly sessions together” to work through pre-trial issues, given the complicated task of sorting out how the 19 co-defendants will be tried.
This story has been updated with additional details.
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CNN’s Marshall Cohen, Holmes Lybrand, Hannah Rabinowitz, Zachary Cohen, Chris Youd and Maxime Tamsett contributed to this report.
