The Georgia judge presiding over a case against former President Donald Trump and others indicated that he will not dismiss the case as it pertains to Sidney Powell, former federal prosecutor and one of the defendants. He agreed, however, to order prosecutors to look for more evidence helpful to Ms. Powell’s defense and warned that if it later turns out the prosecutors were holding back, it could undermine their case.
Ms. Powell’s lawyer, Brian Rafferty, asked for the dismissal on the grounds that the prosecutors were aware of evidence that clears his client and, therefore, the prosecutors must have lied to the grand jury to obtain the indictment.
Superior Court Judge Scott McAfee countered that, in his view and under the case law in Georgia, the judge doesn’t have the authority to dismiss a case on this basis.
The case was brought on Aug. 14 by Fulton County District Attorney Fani Willis, alleging that the challenges by President Trump, Ms. Powell, and 17 others against the election results amounted to a racketeering conspiracy.
Much of the indictment deals with efforts to set up alternative slates of electors in several states, including Georgia, and then allegedly use them “for disrupting and delaying” the counting of electoral votes by Congress.
Ms. Powell isn’t alleged to have participated in those activities. Instead, she allegedly had a data forensics company access and copy data from election machines and computers in Coffee County, Georgia, without authorization on Jan. 7, 2021.
In addition to the charge of a racketeering conspiracy, she’s also accused of a conspiracy to commit election fraud, conspiracy to commit computer theft, conspiracy to commit computer trespass, conspiracy to commit computer invasion of privacy, and conspiracy to defraud the state.
She’s denied involvement in any such activities, and Mr. Rafferty has pressed the prosecutors to help him find evidence to make that case. He’s argued that they are obliged to do so under the case law rooted in the 1963 Supreme Court case Brady v. Maryland. The case established that prosecutors in criminal cases have to hand over any exculpatory information that would be useful to the defense of defendants.
Mr. Rafferty has complained to the court that the prosecutors haven’t been sufficiently helpful in this regard. They have produced several terabytes of evidence in their possession, but Mr. Rafferty argued that they should do a broader search for anything that specifically supports his line of defense—that Ms. Powell “was not involved” in the Coffee County incident and that the examination of the election data was authorized by Coffee County Election Board, particularly Misty Hayes, then-head of the board.
Ms. Hayes is also among the defendants in the case, facing much of the same charges as Ms. Powell.
He’s also obtained the invitation itself, though it’s not clear from what source since the prosecutors said they didn’t have it when he previously asked them to look for it.
“This is favorable stuff. Very favorable and exculpatory to Ms. Powell that I asked for and they said it doesn’t exist when in fact it did,” he told the judge.
When Aware of GBI Report
The prosecutors called the accusation baseless and “absurd.”They only learned about the existence of the GBI report last week and handed it over to the defense shortly after getting it, Deputy District Attorney Will Wooten told the judge during the hearing.
He also dismissed the significance of the invitation letter.
“We don’t believe that this purported letter proves what Mr. Rafferty believes it proves. But when it was requested from us, we looked at our materials to see if we had it. We did not have it,” he said.
He also complained that Mr. Rafferty was using the hearing to argue for Ms. Powell’s innocence, which, he said, should wait for the trial.
“We believe she was involved. We don’t believe that there was a letter that granted any kind of lawful authorization. But we’ll save that for the jury,” he said.
Mr. Rafferty argued, however, that the prosecutors were obliged to search for exculpatory evidence even among other agencies that were in some way connected to the investigation.
“What you have to do is actually go see if it exists because if they had, they would have known before they got the indictment that the letter of invitation existed,” he said.
Mr. Wooten noted that GBI was doing its own separate investigation and the prosecutors weren’t working with the agency, save for interviewing several agents in a matter unrelated to Coffee County.
Mr. Rafferty appeared convinced that the prosecutors could dig up more evidence backing his assertion that the inspection was authorized.
“When I speak of authorization, it’s documents, it’s materials, it’s communications [that show]—whether or not in fact the individuals involved were authorized—that people believed they were authorized,” he said, alluding to the fact that prosecutors need to prove Ms. Powell broke the law knowingly in this case.
The judge shot down the request for dismissal as insufficient.
“I don’t see that as clearing just the procedural bar of being something that’s under the court’s authority,” he said.
Ms. Powell is scheduled to start trial on Oct. 23 with another defendant, Kenneth Chesebro. Both of them requested a speedy trial. Other defendants, including President Trump, will be tried on a later date, though it’s not yet clear when.
The judge was open to compelling the prosecutors to search for more exculpatory information, asking Mr. Rafferty to give him specific examples of what to look for.
Mr. Rafferty gave the example of witness interview transcripts from an investigation by a Special Purpose Grand Jury that preceded the indictment. Prosecutors have only agreed to share transcripts of the witnesses they plan to call during trial, but Mr. Rafferty pointed out that they are required to look for anything exculpatory in all the transcripts.
“The court at least has the authority to tell the government to go back and look at all of this stuff,” he said.
The judge agreed.
“We can file an order directing many of these things, and the state would have the obligation to double-check and triple-check, and if during the second or however many trials we have something else comes up, then the state is really setting itself up,” he said.
Mr. Wooten agreed, though he mentioned that they believe everything was already turned over.
“We can take another look to make sure,” he said.
