Legal Experts Weigh in on ‘Big Mess’ of Georgia Trump Election Case, What to Expect

Former President Donald Trump boards his private airplane, also known as Trump Force One, as he departs Atlanta Hartsfield-Jackson International Airport after being booked at the Fulton County jail in Atlanta on Aug. 24, 2023. Joe Raedle/Getty Images

The Fulton County, Georgia, racketeering case against former President Donald Trump and 18 co-defendants for challenging the 2020 election results, which prosecutor Fulton District Attorney Fani Willis wanted to try all together, was itself challenged almost immediately after the indictment. Several of the defendants began filing notices of removal to federal court, demanding different, varying trial dates, and finally severing their cases from each other.

It’s what Paul Kamenar, counsel for the National Legal and Policy Center, calls a “big mess.”

Hearings have already been underway, and on Sept. 6 a Georgia judge held a televised hearing regarding severing the cases of attorney Kenneth Chesebro and former federal prosecutor Sidney Powell, who both served as attorneys for President Trump during the 2020 challenge of election results. Both defendants had filed demands for a speedy trial. The prosecution requested to try them together, while the defendants insisted their cases were too different to be tried together coherently. Judge Scott McAfee denied the request to sever them.

However, given that it is a RICO—Racketeer Influence and Corrupt Organizations—case, this means the prosecution needs to try the entire case against two of the 19 defendants, and then again later try one or more cases against the other defendants. The prosecution argued as much when asking that all 19 defendants be tried together, which will no longer happen.

“But that’s only one of the issues,” said Mr. Kamenar, adding that there are “other issues that need to be resolved.”

Case Tried Multiple Times

Besides Mr. Chesebro and Ms. Powell, attorney John Eastman has also asked to sever his case, as has President Trump.

Defendants Mark Meadows, former chief of staff to the president; Jeffrey Clark, former Justice Department official; David Shafer, former Georgia Republican Party chair and alternate elector in 2020; and Shawn Still, another alternate elector in 2020, have removed their cases to federal court. Hearings have also been scheduled in federal court to determine how much of these cases will be remanded, or moved, back to state court.

“Either side could appeal that to the 11th circuit,” Mr. Kamenar explained, which further complicates the issue. The prosecution is expecting the case—which now may need to be tried twice, at least—to take four months not including jury selection, and include 150 witnesses.

Appealing the removals could take another four to six months, the judge pointed out, meanwhile the entire racketeering case has to be tried twice in state court, and maybe again in federal court.

“It really is very convoluted and just really a big mess, to put it mildly,” he said.

The only sure thing so far is that Mr. Chesebro and Ms. Powell will be tried on Oct. 23, and the other defendants are most likely going to use the televised, highly public case to inform their own defenses. Cases removed to federal court would not be televised.

“If they’re found innocent, and I think they have a good chance of that happening ... all he did was make some legal, Constitutional arguments, why is that a crime? And so if he’s found innocent then the others, Trump and so forth, can say look—this case is falling apart.”

Keeping the Story Straight

John Malcolm, vice president of the Institute for Constitutional Government at the Heritage Center, was earlier in his career a practicing attorney in Atlanta, an Assistant U.S. Attorney in Atlanta, and Deputy Assistant Attorney General at the Department of Justice’s Criminal Division.

Weighing in on the Georgia case, he said it’s understandable the defendants—some of whom have never met each other—want their cases tried separately.

“I think that they don’t all want to be sitting around the same table, particularly with Donald Trump,” he said. “They figure, OK, if they could just isolate the evidence against them individually, that it will be a more attackable case.”

Like Mr. Kamenar, Mr. Malcolm said separate cases being tried over and over again, however, are proving to be “somewhat of a logistical nightmare.”

“Although perhaps not as bad a logistical nightmare as trying 19 defendants at one time,” he added.

It will involve bringing the same witnesses back to testify multiple times, and presenting the same evidence over and over, he explained, but this may give rise to a new opening for an attack from the defense.

“The more times you repeat a story, there are going to be inconsistencies that occur that later defendants will be able to exploit,” he said.

Due Process Defense

Several defendants have already raised due process defenses, arguing the indictment, process, jurisdiction, or timelines are violating their rights.

Mr. Malcom said President Trump could certainly make such arguments, as he is being rushed to trial by several criminal prosecutors while facing a busy schedule with civil litigation and campaigning for president, but they won’t help him in the short term.

“That is not appealable until after you are convicted,” Mr. Malcom said, so while he has a strong case to overturn the cases against him by arguing he didn’t have the right to properly prepare for the cases, it would be months down the road.