Georgia Judge Reluctant to Toss Trump Co-Defendants’ Charges Ahead of RICO Trial

ATLANTA – A Georgia judge signaled Tuesday he would not dismiss charges against Kenneth Chesebro and Sidney Powell, telling defense attorneys for two of Donald Trump’s co-defendants that their arguments in pre-trial motions are best resolved after the evidence is presented at the upcoming trial. 

“This seems like something for a directed verdict,” Fulton County Superior Court Judge Scott McAfee said after hearing arguments from Chesebro attorney Manny Arora on two of the three motions aimed at defeating District Attorney Fani Willis’ 2020 election racketeering indictment.

A directed verdict is a judge’s ruling in favor of the defendant issued after the prosecution presents its evidence at trial, but before the jury begins deliberation. 

With his repeated references Tuesday to directed verdicts, McAfee appeared to signal that the defendants originally charged alongside the former president and 16 others were raising issues at a procedurally premature time via their pre-trial motions.

Chesebro, a relatively unknown Wisconsin lawyer who has since burst into the public spotlight for his role assisting Trump’s efforts in 2020, attended the 2 ½-hour hearing in-person but did not speak during the proceedings or make any public comments afterward.

In pre-trial motions that Powell’s attorneys signed onto and heard at Tuesday’s afternoon’s hearing, Chesebro’s attorneys argued that Chesebro’s role as the architect of the “fake” electors scheme isn’t criminal. 

It’s an argument they made across three motions seeking for charges to be thrown out, one citing the Supremacy Clause of the U.S. Constitution, which holds that federal laws take precedence over state law when there is a conflict. The other two motions dealt with a First Amendment claim and arguments pertaining to attorney-client privilege.

Powell and Chesebro, who have both pleaded not guilty, have invoked their right to a speedy trial under Georgia law, and their cases were severed from the other co-defendants in the case. They are scheduled to stand trial in less than two weeks, with jury selection starting Oct. 20.

Supremacy Clause

In their Supremacy Clause motion, Chesebro’s lawyers argued that the Electoral Count Act (ECA) makes alleged crimes related to appointing electors a federal rather than state matter after the Dec. 8, 2020 so-called “safe harbor” deadline for states to certify their presidential election results.

“The state is trying to usurp Congress’ authority,” Arora said of the charges against Chesebro.

“Essentially your argument, as I take it, is, as a matter of law, that the indictment should be dismissed,” McAfee said of Arora’s position. 

“I’m getting held up procedurally here where you’re assuming certain facts that haven’t been established yet in order to make the claim,” the judge continued, saying the question is best handled by a directed verdict.

Will Wooten, prosecutor for the state, said the defendants “pointed to no statute, no constitutional provision that says the state shall not prosecute any state crimes related to the Electoral College.”

“The district court up the street took up this issue a little bit in the context of removal and completely rejected it,” Wooten said, referring to former White House Chief of Staff Mark Meadows’s attempt to have his prosecution moved from state to federal court. A federal district court judge rejected Meadows last month, as well as separate requests from former Trump Justice Department official Jeffrey Clark and three of the so-called ‘fake’ electors. All of those bids are now being reviewed by the 11th Circuit U.S. Court of Appeals in Atlanta.

Arora defended the lack of precedent in his argument. “I’m sorry we haven’t had ECA challenges in 140 years,” he said. “This is a unique case”

First Amendment

The second motion discussed on Tuesday relied on the First Amendment of the U.S. Constitution, arguing that Chesebro’s legal theories, analysis, advice and memos are protected speech. 

“Essentially the government argument is that everything is a crime and so the First Amendment doesn’t apply,” said Arora. 

“At what point does the First Amendment not apply?” he said. “There’s nothing illegal if you read the memos out.”

Arguments centered on the fact that  false statements generally need to be reckless to be a crime. 

“So much of what is reckless is a question of intent,” McAfee said, adding: “This seems like something for a directed verdict.”

Arora said that much of the case revolves around interpretations of the law, rather than disputes about the evidence.

“We’re about to have a trial with a jury that by the end of it will be constitutional law professors because all the facts are in the law, and so I’ve been trying to short circuit it because you’re smart enough to know what’s going on,” Arora told McAfee. 

Attorney-client privilege

Finally, Chesebro’s attorneys argued the alleged evidence of Chesebro’s designs to appoint electors in Georgia and other states – a series of legal memos and emails written in the aftermath of the 2020 presidential election – is protected by attorney-client privilege. 

Generally, communications between attorneys and their clients are protected from disclosure except in certain circumstances, such as when the communications are sent for the purpose of committing a crime.

Chesebro attorney Scott Grubman cited a 1935 case that “charging or alleging an argument is not enough” to pierce attorney-client privilege. 

“The state has to make a prima facie showing that the crime-fraud exception applies,” Grubman said. 

Donald Wakeford, a prosecutor for Georgia, argued that the  “burden on the state is not high” on the so-called crime-fraud exception.

“All we have to do is provide some evidence that there is something more than a baseless accusation,” Wakeford said.

While Chesebro’s attorneys argued that he was working as an attorney with Trump’s 2020 campaign as his client, prosecutors said they disagreed that there was an attorney-client relationship.

“None of the people that these emails go to are his clients, so I don’t know how that can be construed as legal advice,” said prosecutor Will Wooten. 

McAfee did not make any rulings from the bench on Tuesday, and said he would issue written orders on the motions.

The judge also requested prosecutors and Chesebro’s attorneys submit further documentation to him, to be entered into the record under seal, to consider the specifics of where attorney-client privilege might apply.