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Georgia judge to consider Trump co-defendants’ requests to sever their cases

A Georgia judge has scheduled a hearing Wednesday to consider motions from former Trump lawyers Sidney Powell and Kenneth Chesebro’s to sever their cases after they pleaded not guilty to racketeering charges in the battleground state’s election interference case.

Fulton County Superior Court Judge Scott McAfee said he plans to ask prosecutors at the hearing for a “good-faith estimate of the time reasonably anticipated to present the State’s case during a joint trial of all 19 co-defendants, and alternatively any divisions thereof, including the number of witnesses likely to be called and the number and size of exhibits likely to be introduced.”

The sprawling 41-count indictment in the case charged former President Donald Trump and 18 co-defendants, including Powell and Chesebro, with violating Georgia’s Racketeer Influenced and Corrupt Organization (RICO) Act. Fulton County District Attorney Fani Willis alleged all 19 defendants participated in schemes designed to overturn Joe Biden’s 2020 victory in Georgia and unlawfully name Trump the winner of the election.

All defendants have pleaded not guilty and waived their arraignments as of Tuesday.

Powell, who was part of Trump’s legal team that boosted his claims of widespread election fraud after his loss to Biden, is charged with racketeering, conspiracy to commit election fraud, conspiracy to commit computer theft, trespass and invasion of privacy and conspiracy to defraud the state. The computer theft charge is related to an effort to improperly access voting machines in rural Coffee County, prosecutors allege.

Powell filed a motion last month to sever her case from the other co-defendants, saying she “has no substantive connection with any other defendant regarding the charges in the Indictment.” 

“Contrary to widely publicized false statements in the media, Sidney Powell did not represent President Trump or the Trump campaign. She had no engagement agreement with either,” Powell’s defense attorney Brian Rafferty said in a filing last month. “It cannot be disputed that Ms. Powell went her own way following the election, and she never reached an agreement on a course of action with any indicted or unindicted coconspirator — and certainly not any illegal course of action. She was not part of any group ‘associated in fact’, or an ‘ongoing organization’ that functioned as a ‘continuing unit’, for any purpose.”

Rafferty denied Powell’s involvement in the Coffee County elections data breach, saying there was no contract to conduct forensic imaging of the systems and that she did not organize the trip to Coffee County.

“Ms. Powell can receive a fair trial only if she is tried alone. The prejudice that would inure to her from a lengthy trial with any of those she was not involved and about the vast number of events she had no knowledge of or connection with would deny her Due Process,” Rafferty said in a filing last month, explaining that her trial would last three days at most and would result in acquittal. “The simple fact that Ms. Powell would be forced to sit in a courtroom for weeks or months with co-defendants will cause tremendous prejudice to Ms. Powell.”

Chesebro, a former Trump campaign attorney who helped craft the fringe legal theory behind the so-called “fake electors” scheme to overturn the 2020 election, pleaded not guilty to racketeering and conspiracy charges in the case last week.

Chesebro has argued that he was merely sharing legal advice and did not commit any unlawful actions. He filed motions last month calling for a speedy trial, which McAfee has approved and scheduled for Oct. 23.

Chesebro last week also asked the judge to sever his case from the other co-defendants. His attorneys said he doesn’t want to be tried with Powell because the allegations levied against him are completely unrelated to Powell’s charges.

“Entirely separate, and completely unrelated from the allegations levied against Mr. Chesebro, the allegations related to Ms. Powell center around her alleged belief, and alleged work in furtherance of that belief, that voting machines were erroneously tabulating votes,” the attorneys said in a filing last week.

Chesebro’s attorneys said he has never directly communicated with Powell nor been to Coffee County, where much of her alleged involvement was centered. They argued that trying their client with Powell would be potentially prejudicial.

“In order to achieve a fair determination of the guilt or innocence of Mr. Chesebro, he must be severed from the trial,” the filing said. “The fact that Mr. Chesebro is implicated with Ms. Powell will inextricably link them together and has the potential to cause a tremendous prejudice.”

Wednesday’s hearing also comes a day after attorneys for Chesebro asked McAfee to dismiss the RICO indictment, citing the Supremacy Clause of the Constitution.

In the Tuesday filing, Chesebro’s attorneys said that most of the conduct he’s charged with occurred after the 2020 election’s “safe harbor” date for states to resolve disputes and certify their results, and thus would be in violation of federal law, not Georgia law. 

“Under the Supremacy Clause, the State cannot prosecute or otherwise regulate conduct that was entirely within the ambit of federal authority. Therefore, the State has no power to prosecute any post-December 8th conduct,” they wrote.

They noted a Dec. 6, 2020, memo that Chesebro authored detailing the fake electors scheme in the filing, arguing that even if it was improper for Chesebro to draft the memo, “this memo in no way touched or concerned Georgia or its rules, processes, or procedures it had implemented as a result of its congressional delegation via the [Electoral Count Act].”

“Therefore, the charges against Mr. Chesebro are wholly invalid as drafted in the indictment and should be struck accordingly,” they wrote.

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