Judge Rejects Trump Co-defendant’s Motion to Dismiss Fulton County Case

Fulton County Superior Judge Scott McAfee hears motions from attorneys representing Ken Chesebro and Sidney Powell, two co-defendants of former President Donald Trump, at the Fulton County Courthouse in Atlanta, Georgia, on Sept. 14, 2023. Miguel Martinez/Pool/AFP via Getty Images

Judge Scott McAfee, presiding over the case against Former President Trump and 18 co-defendants for their challenge of the 2020 election results, rejected a co-defendant’s motion to dismiss the indictment.

Kenneth Chesebro had been an attorney for President Trump in the 2020 challenge, and proposed using alternate slates of electors in several states where they suspected election fraud. He was one of several lawyers charged alongside the former president in Fulton County. On Aug. 14, a grand jury handed up a 98-page, 41-county indictment against the 19 individuals.

Mr. Chesebro had filed a motion to dismiss the indictment based on Special Assistant District Attorney Nathan Wade’s authority, noting that he was assigned to the special purpose grand jury that recommended charges as well as the grand jury that returned the indictment.

Mr. Wade is one of the prosecutors with the Fulton County District Attorney’s office, but Mr. Chesebro is arguing that Mr. Wade was not authorized as a public officer in Georgia.

The judge rejected Mr. Chesebro’s arguments, writing that he had not shown any evidence of prejudice, nor how Mr. Wade would not be authorized for his role under the cited statutes.

“The motion fails to establish that this code section is even relevant to Special ADA Wade,” the judge wrote. “The Defendant has failed to establish how Special ADA Wade’s actions resulted in prejudice, i.e., how his assignment singlehandedly changed any specific actions taken during the investigation of resulted in the true bill of indictment ... nor has the defendant established a constitutional violation or structural defect in the grand jury process sufficient to justify outright dismissal.”

Trial Preparation

Mr. Chesebro was the first defendant to demand a speedy trial, and will be tried together with co-defendant Sidney Powell, who led efforts to investigate election fraud in 2020. The two defendants go to trial on Oct. 23, and the court has been working through the motions and logistics of the case with the defense and prosecution.

The defense attorneys had requested special purpose grand jury information, including witness testimony transcripts, and the opportunity to interview the jurors. They told the judge they suspected the jurors were influenced by the prosecutors, and if they found such evidence they would try to get the case dismissed.

They cited the fact that the grand jury that had later returned the indictment had done so in about one day, after a mishap at the clerk’s office when a document that looked like an indictment charging President Trump on 13 counts was posted online hours after the trial began. Under normal circumstances, the clerk would not have access to the prosecution’s expected charges, which made it all the more strange when the 13 charges later matched exactly on the actual indictment. The clerk’s office has stated that the document that was posted, then deleted, was the result of a technical accident.

Mr. Chesebro has filed several other demurrers and motions to dismiss the charges against him, citing various arguments including the First Amendment and the Supremacy Clause. He is also fighting to keep private emails between him and the Trump Campaign private, which the prosecution seeks to enter into evidence.

The 21 acts of racketeering in the indictment in which Mr. Chesebro is named are all emails he sent, save for one act which was the writing of a legal memo.

“An attorney is obviously prohibited from counseling a client on committing a crime or fraud, but the attorney is permitted to give ‘an honest opinion about the actual consequences that appear likely to result from a client’s conduct,’” Mr. Chesebro’s attorneys argued, citing the American Bar Association’s rules for professional conduct.

Involvement

Mr. Chesebro’s involvement began when he was contacted by James Troupis, a former judge and colleague of his who was at the time an attorney for President Trump.

Mr. Troupis asked for his help to research the 12th Amendment and the Electoral Count Act after suspecting voting irregularities in Wisconsin.

Mr. Chesebro returned a memo outlining legal theories with case citations, law review articles, historic precent, and academic papers.

He was then asked to do additional research, pertaining to other states, and wrote a second memo which outlined the successful 1960 challenge in Hawaii, when the Kennedy Campaign used an alternate slate of electors to challenge the vote that went to Richard Nixon, and Al Gore’s unsuccessful challenge in 2000. This was directly referenced by the alternate electors indicted alongside Mr. Chesebro in the Fulton County case.

“The memo emphasizes that for the proposed legal conclusions to be actionable, there must be valid lower court decisions in each state,” his lawyers noted in one of his motions to dismiss the indictment. They argue that the prosecution will “manipulate this language” in their arguments that he recommended people to impersonate electors based on his advice, and that Mr. Chesebro had done no such thing but instead relied on legal precedent in his advice.

“Mr. Chesebro provided legal advice,” they argued. “This medium of conduct is wrapped tightly in a cloak of First Amendment protection.”