Judge Denies Fulton County DA Request to Try All 19 Defendants Together in Trump Election Case

Fulton County Superior Court Judge Scott McAfee presides over a hearing regarding media access in the case against former President Donald Trump and 18 others at the Fulton County Courthouse in Atlanta, Ga., on Aug, 31, 2023. Arvin Temkar/Pool/Atlanta Journal-Constitution via AP

Fulton County Superior Court Judge Scott McAfee officially severed the cases of defendants Kenneth Chesebro and Sidney Powell from former President Donald Trump and 16 co-defendants on Thursday in a new order.

“Severing the remaining 17 co-defendants is simply a procedural and logistical inevitability,” Judge McAfee wrote, while reiterating the order that Mr. Chesebro’s and Ms. Powell’s cases will not be severed from each other and denying any request to pause state proceedings while removals to federal court are ongoing.

Fulton County District Attorney Fani Willis, who is prosecuting the case, has repeatedly asked to try all 19 defendants together, previously arguing that was the correct procedure since the judge did not officially sever their cases.

In an earlier hearing, her office estimated the trial would take four months, not including jury selection, and call up 150 witnesses from the prosecution’s side.

In addition, they wanted to go to trial on Oct. 23.

Judge McAfee expressed skepticism, offering that the case may take twice as long as they expect with the witness count estimate.

Further complicating the case is the fact that several defendants have filed to move their cases to federal court and sever their cases from each other. The judge noted that a federal ruling or appeal could stall or render a state ruling moot.

The prosecution argued that because this is a racketeering case, the entire case needs to be brought forth every time one of the defendants is put on trial. If the judge severed the two defendants’ Oct. 23 trial from the rest, the prosecution would need to bring the whole 150-witness case to trial twice, which is now what seems will happen, unless the prosecution changes tack.

In the Sept. 14 order, Judge McAfee wrote that trying the same case multiple times separately would still be preferable to doing it once with all 19 defendants, given that they all have different schedules, and retain attorneys who further have their own different schedules.

“Even if the State’s case remains identical in length, and the aggregate time invested by the Court is increased, the burden on the jurors for each individual trial is lessened through shorter separate trials,” he wrote.

“We must consider the ripple effects of a months-long, multi-defendant trial on the local criminal justice system, sidelining dozens of defense counsel from handling other cases and preventing this Court—and quite likely most colleagues—from managing the rest of the docket.

“Severance is an absolute necessity,” Judge McAfee wrote, adding that the remaining 17 defendants may be tried in further severed cases to be decided at a later date.

No trial date has yet been set for the remaining 16 defendants, some of whom are saying they have never even met other defendants named in the same indictment, and are arguing they cannot be accused of participating in the same alleged scheme.

Ms. Willis has argued that the 19 defendants’ actions to challenge the Georgia 2020 election results constitute a conspiracy, and all have been charged with violating the state’s Racketeer Influenced and Corrupt Organizations Act.

She previously requested a March 4, 2024 trial date, but President Trump is already scheduled to begin trial for a similar case in federal court, regarding his actions on Jan. 6, 2021. He is being accused of conspiracy to defraud citizens of their vote by asking Vice President Mike Pence to pause the vote certification proceedings, in a case prosecuted by special counsel Jack Smith. The case is presided over by Judge Tanya Chutkan, known for severe sentencing of Jan. 6-related cases, and President Trump has requested the judge recuse herself.

Mr. Chesebro filed his demand for a speedy trial on Aug. 23, after which Ms. Willis proposed the Oct. 23 trial date for all defendants.

President Trump filed a motion to sever his case immediately after the demand, and Judge McAfee had approved a speedy trial for Mr. Chesebro only. The defense and prosecution clashed over the timeline, with the prosecution arguing that Mr. Chesebro gave up the 10 days period for discovery when he asked for a speedy trial and the defense arguing that Ms. Willis should not deprive Mr. Chesebro of his rights if she could not meet the deadline she had requested. The judge denied a blanket request (pdf) to inform all defendants of the effects of a speedy trial, highlighting shortened deadlines.

Ms. Powell later filed a demand for a speedy trial, as well as a motion to sever her case from Mr. Chesebro’s because the acts they are named in are not related. Mr. Chesebro’s attorneys also argued that the cases should be separated: Ms. Powell’s charges have to do with the investigation of voting machines, while Mr. Chesebro’s have to do with organizing an alternate slate of electors in Georgia.

The judge denied their requests to be tried separately, assigning the Oct. 23 date to Ms. Powell’s case as well.

Ms. Willis argued that the speedy trial timeline should apply to all defendants after the judge’s order in response to Mr. Chesebro’s demand, after a hearing regarding Ms. Powell and Mr. Chesebro’s cases, and again this week, prompting President Trump to waive his right to a speedy trial in exchange for severance. The judge’s official order this week clarifies the court’s positions on how the defendants may be tried.