Judge Won’t Dismiss Charges, Case Against Former Trump Attorneys in Fulton County

Judge Scott McAfee presides in Fulton County Superior Court in Atlanta, Ga., on Sept. 14, 2023. Miguel Martinez/Pool/Getty Images

Ahead of the Oct. 23 trial date, Sidney Powell and Kenneth Chesebro, co-defendants of former President Donald Trump, had filed a flurry of motions and demurrers seeking to have specific charges against them and the case at large dismissed. Judge Scott McAfee issued a ruling just a week ahead of the case, dismissing all of them.

“The defendants have collectively filed and adopted several motions contending that every count with which they are charged is fatally defective and must be dismissed,” the judge wrote in the new order on the demurrers. “After reviewing the law, record, and parties’ arguments, and finding that each challenged count is facially sound as alleged, the motions are denied.”

Upcoming Trial

On Aug. 14, the former president and 18 co-defendants were indicted for their actions to challenge the 2020 election results. They were charged with violating Georgia' Racketeer Influenced and Corrupt Organizations (RICO) Act, as well as 40 other counts in all.

Several of the defendants were attorneys working in their official capacity, such as Mr. Chesebro, who was an attorney for the Trump campaign. Ms. Powell, also an attorney, was not retained by the campaign, but independently had sought to investigate election fraud, and is charged for several actions allegedly undertaken in Coffee County related to voting machines.

Though the actions each had been charged for are not related, the prosecutors have argued that this is a RICO case, and defendants do not need to have even met or know of each other, as long as they were involved in the same scheme.

Mr. Chesebro and Ms. Powell were the only defendants to demand a speedy trial, and Judge McAfee severed their cases from the other 17 defendants.

Motions Hearing

Both defendants had filed several motions ahead of the trial, and last week the court had scheduled multiple hearings so some of them could be argued before the judge. The judge made no decisions on Oct. 10 and Oct. 11, only requesting clarification at times, and ended the hearings by going over the logistics of jury selection with both parties.

Judge McAfee noted that both parties were bringing up arguments meant for trial, not pretrial motions hearings, commenting that they were “eager to do battle” and he would like to follow procedure.

The defendants repeated arguments that the charges should never have been brought in the first place, because their clients committed no criminal violations and the actions listed in the indictment were covered under basic protections like the First Amendment.

The prosecutors argued that such protections do not hold when someone is acting to break the law.

Lost in translation between the two parties was the issue of intention, which will necessarily come up in the trial arguments. The prosecutors’ arguments were based on the assumption that the defendants knowing acted with criminal intention, while the defense attorneys’ arguments were based on the underlying assumption that their clients truly believed they were acting lawfully. Both parties talked past each other for a total of nearly four hours in the two hearings, which did not cover all of the charges.

Intention

Legal experts who have been weighing in on the unconventional Fulton County case since the indictment was handed up have commented on how difficult it is to prove intention, pointing out the entire RICO case relies on intention.

Alan Dershowitz, professor emeritus at Harvard Law, had predicted “fast” and “bad” convictions from the four criminal cases against President Trump, which would later be overturned easily on appeal, but only after the 2024 general election. He added that this was especially likely in cases that rely on criminal intention, such as the RICO case in Fulton County.

“I used to teach my students, many future prosecutors, that if you bring a RICO case, that increases your chances of winning a trial and losing on appeal, the same thing is true with conspiracy and other cases involving mental states,” he said. These cases require prosecution to prove, in many cases, that President Trump had corrupt intent, and carried out his actions while believing he had actually lost the elections.

“So all four of these cases are designed to get quick convictions in jurisdictions that are heavily loaded against Donald Trump.”

Mr. Dershowitz has noted often that he is not a Republican or Trump supporter, but he believes the law is being abused in prosecutions against the former president. He had represented President Trump during his impeachment, and later wrote a book about the partisan efforts underway to prevent President Trump from taking office again.

He noted that what President Trump did to challenge the Georgia election results, actions he was indicted for, was “the same thing” Al Gore did in 2000 when he called for a recount in Florida.

Mr. Dershowitz had been involved in the challenge, and like President Trump’s efforts, it ultimately failed.

“We challenged the election, and we did much of the things that are being done today and people praised us,” Mr. Dershowitz said. “Now they’re making it a crime.”