The early defense strategies being pursued by former President Trump and his 18 co-defendants in Georgia are quickly complicating prosecutors’ aim to go to trial next month.
District Attorney Fani Willis (D) is attempting to keep all of the co-defendants together for a singular trial beginning Oct. 23, but several legal maneuvers already underway pose deep challenges to Willis’s goal, which legal experts have called extraordinarily ambitious.
So far, five defendants have attempted to move their charges to federal court, two have demanded a speedy trial and a majority have aimed to sever their charges from fellow co-defendants.
Fulton County Superior Court Judge Scott McAfee teased last week the difficulties of trying so many people in such a short amount of time.
“It just seems a bit unrealistic to think that we can handle all 19 in 40 something days,” he said.
Trump has looked to delay the trial timelines in all four of his criminal cases. Though the Georgia charges aren’t subject to a presidential pardon, the recent maneuvering raises the possibility that a trial won’t be held until after the November 2024 election.
With McAfee expected to soon set a trial date for Trump in Georgia, here’s how the defense strategies are playing a role in that timeline:
Moves to federal court
Five of the 19 co-defendants so far are attempting to move their charges from state court to federal court, a process called removal that could tie up the case for months.
The list so far comprises two Trump administration officials: former White House chief of staff Mark Meadows and former Justice Department official Jeffrey Clark. Three pro-Trump individuals charged with signing documents purporting to be Georgia’s valid electors are also navigating this maneuver.
Trump’s attorney has suggested the former president may follow in their footsteps.
A federal judge denied Meadows’s attempt Friday, but he quickly appealed the ruling to the 11th U.S. Circuit Court of Appeals. The judge has not yet ruled on the others’ requests.
McAfee has suggested the removals make it difficult to accomplish Willis’s goal of trying all the defendants in state court next month.
“It could potentially even optimistically be a six-month turnaround just for the 11th Circuit to come up with a decision, right?” McAfee said at a hearing last week.
“Yes, sir,” responded Deputy District Attorney Will Wooten.
Even after the 11th Circuit weighs in, the losing side could prolong the dispute by bringing it to the Supreme Court.
In the meantime, state court proceedings can continue. But a defendant’s removal request must be rejected before a conviction is entered.
Some legal experts believe if any one defendant’s request is successful, the others’ charges would automatically be moved as well.
McAfee at the hearing questioned what would happen if the case is moved after a trial begins.
“Where does that leave us in the middle of a jury trial?” McAfee said. “Is double jeopardy attached? Have you now risked your entire prosecution because this case has now been removed to federal court? And we've sworn in a jury that has been presenting evidence against all these other co-defendants.”
Speedy trial, severance demands
Two co-defendants, lawyers Kenneth Chesebro and Sidney Powell, have further complicated the timeline by invoking their right to a speedy trial.
A key coordinator of the fake electors plot, Chesebro was the first defendant to request a speedy trial last month, putting his case on an expedited timeline and effectively separating it from the other 18 defendants. Powell, a former Trump-aligned attorney who became a prominent surrogate for the former president’s false election fraud claims, made her request shortly after.
Under Georgia’s speedy trial rules, a case must be tried within the following two court terms, or within about four months, after the right is invoked. The judge set a joint trial for Chesebro and Powell beginning Oct. 23.
But Willis faces strong objections from Trump’s legal team as well as several other co-defendants in her goal of keeping everyone together.
McAfee, the judge, has said he plans to set a schedule after the parties submit a new round of written briefs by Tuesday. But McAfee already said he is “very skeptical” that Trump and the others should go to trial in October.
“It's not easy, and we've got, again, less than two months to figure this out. So I think to kind of charge ahead without coming to some thoughts on this very soon might be risky,” McAfee said at last week’s hearing.
As Chesebro and Powell’s efforts to speed up their trials progress, other defendants are fighting to ensure their cases aren’t swept up in the expedited timeline.
Trump and six other co-defendants have asked to sever their case from the duo and any others who file similar speedy trial motions. Meadows asked to sever his case from all of his co-defendants.
Attorneys for Ray Smith, who was a member of Trump’s legal team in Georgia, suggested breaking the 19 defendants into “manageable groups,” which they signaled would be suggested after discovery in mid-September.
Differing motives, dynamics
Despite any previous allegiance to the former president, efforts to set a timeline for the sweeping case have laid bare the defendants’ diverging motives as the case progresses.
With each defendant represented by different counsel — and each having their own best interest at heart — it’s all but certain the defendants will increasingly butt heads as a trial nears.
The defendants’ unified wall has already started to crumble in pretrial motions and other court filings.
In Chesebro's efforts to sever his case from Powell, he insisted the pair never met, and never sent emails, called, texted or communicated on social media with each other, rendering it “impossible” to try their cases together.
“The actions of Mr. Chesebro and Ms. Powell are akin to oil and water; wholly separate and impossible to mix (into one conspiracy),” Chesebro’s attorney wrote in court filings.
A handful of fake electors have started pointing the finger at Trump. Two Georgia Republicans who signed documents falsely stating they were Trump electors have argued that they acted “at the direction” of the former president — a directive that they argued amounted to permission from the federal government to take the steps they did.
David Shafer, who served as the chairman of the Georgia Republican Party, blamed Trump in a petition to move the Fulton County case to federal court, as well.
“Mr. Shafer and the other Republican Electors in the 2020 election acted at the direction of the incumbent President and other federal officials,” his attorneys wrote in the Aug. 21 court filing.