Defense attorneys for Robert Cheeley and Ray Smith, both former attorneys for former President Donald Trump, sought to resurrect arguments that the Fulton County District Attorney had used legal statutes improperly, and argued that the judge should throw out the deficient indictment during a Jan. 12 motions hearing.
Last August, President Trump was charged alongside 18 others with violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act for their actions to challenge the 2020 election. Four defendants have since taken plea bargains, and legal counsel for the remaining 15 will be arguing in motions hearings scheduled for the next few Fridays.
Defendant Michael Roman had recently filed a motion accusing the district attorney, Fani Willis, of hiring a prosecutor on her team with whom she was having a romantic relationship, but the issue was taken up during the hearing. Fulton County Superior Court Judge Scott McAfee said it may be scheduled for mid-February, after the prosecutors have had time to file a response.
Steve Sadow, attorney for President Trump, said he was considering adopting Mr. Roman’s motion at a later date but could not do so at the time because he has found no basis for the allegations.
The bulk of the Jan. 12 hearing focused on arguments continued from last October, with defense attorneys arguing the prosecutors applied RICO improperly and did not sufficiently allege crimes or a conspiracy.
Attorneys for Mr. Cheeley argued that the law was not written in a way that suggests it was meant to apply to acts of civil disobedience or used to prosecute separate misdemeanors. They argued that the prosecutors had “twisted and cajoled” the RICO Act to ensnare the group of defendants.
Prosecutors argued that civil disobedience requires one to admit to breaking the law, typically for a moral reason, and none of the defendants have done that.
Amanda Clark Palmer, representing Mr. Smith, also argued that prosecutors were trying to “shoehorn” conduct that doesn’t fit into a RICO case, and that this fundamental flaw merits a dismissal of the indictment.
“It has to be more than ‘you all have the same goals,’” she said. As it pertains to Mr. Smith, the acts of racketeering listed state he was in the same place at the same time as alleged co-conspirators, which she argued didn’t make the cut. Ms. Clark Palmer gave the example of a local protest, in which several protestors arrested for trespass had the same goal and were present at the same time and place, but had acted independently.
Several other arguments about the improper use of RICO or a deficient indictment, and other motions to dismiss were argued last year during motions hearings, but were not granted.
Judge McAfee also followed up on several other motions, including a request by President Trump regarding information shared with the district attorney’s office by the January 6 Select Committee. The district attorney had already agreed to share the materials in discovery, so little issue remained.
Mr. Sadow asked prosecutors whether they reviewed material not made public during a mid-April 2022 meeting with committee investigators, and they answered it was all material that has since been made public.
Attorneys for former Trump lawyer and New York mayor Rudy Giuliani had also earlier filed a motion to compel interviews with the four former defendants who took plea bargains, but has set the motion aside.
Judge McAfee clarified in court that witnesses could not be compelled to speak with legal counsel, but neither could the prosecutors deliberately seek to prevent an interview. The prosecutors also have a right to present at the interviews if the witnesses wish.
Defendant Trevian Kutti made a first appearance at a motions hearing, attending virtually. Her attorneys had all filed a motion to withdraw mid-December, and the judge granted it after clarifying with Ms. Kutti that she understood what it would mean for her case. Ms. Kutti said she will find another attorney herself and understood the case could not be delayed for her.
