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Saturday, August 26, 2023

Why Trial Dates for Trump’s Georgia Case Are So Uncertain - The New York Times

Trump and His Co-Defendants in Georgia Are Already at Odds

"Some defendants have already sought to move the case to federal court, while others are seeking speedy or separate trials.

A law enforcement officer rides a motorcycle in front of reddish barricades that are placed in front of a courthouse building.
The Fulton County Courthouse in Georgia this month.Kenny Holston/The New York Times

Even as former President Donald J. Trump and his 18 co-defendants in the Georgia election interference case turned themselves in one by one at an Atlanta jail this week, their lawyers began working to change how the case will play out.

They are already at odds over when they will have their day in court, but also, crucially, where. Should enough of them succeed, the case could split into several smaller cases, perhaps overseen by different judges in different courtrooms, running on different timelines.

Five defendants have already sought to move the state case to federal court, citing their ties to the federal government. The first one to file — Mark Meadows, Mr. Trump’s chief of staff during the 2020 election — will make the argument for removal on Monday, in a hearing before a federal judge in Atlanta.

Federal officials charged with state crimes can move their cases to federal court if they can convince a judge that they are being charged for actions connected to their official duties, among other things.

In the Georgia case, the question of whether to change the venue — a legal maneuver known as removal — matters because it would affect the composition of a jury. If the case stays in Fulton County, Ga., the jury will come from a bastion of Democratic politics where Mr. Trump was trounced in 2020. If the case is removed to federal court, the jury will be drawn from a 10-county region of Georgia that is more suburban and rural — and somewhat more Trump-friendly. Because it takes only one not-guilty vote to hang a jury, this modest advantage could prove to be a very big deal.

The coming fights over the proper venue for the case are only one strand of a complicated tangle of efforts being launched by a gaggle of defense lawyers now representing Mr. Trump and the 18 others named in the 98-page racketeering indictment. This week, the lawyers clogged both state and federal court dockets with motions that will also determine when the case begins.

Already, one defendant’s case is splitting off as a result. Kenneth Chesebro, a lawyer who advised Mr. Trump after the 2020 election, has asked for a speedy trial, and the presiding state judge has agreed to it. His trial is now set to begin on Oct. 23. Another defendant, Sidney Powell, filed a similar motion on Friday, and a third, John Eastman, also plans to invoke his right to an early trial, according to one of his lawyers.

Takeaways From Trump’s Indictment in Georgia

A fourth criminal case. Former President Donald Trump was indicted for a fourth time on Aug. 14, this time over what prosecutors in Atlanta described as his efforts to unlawfully undo his election loss in Georgia in 2020. The indictment includes 13 charges against Trump, as well as charges against 18 of his allies. Here are some key takeaways:

Soon after Mr. Chesebro set in motion the possibility of an October trial, Mr. Trump, obviously uncomfortable with the idea of going to court so soon, informed the court that he intended to sever his case from the rest of the defendants. Ordering separate trials for defendants in a large racketeering indictment can occur for any number of reasons, and the judge, Scott McAfee, has made clear the early trial date applied only to Mr. Chesebro.

Mr. Trump’s move came as no surprise. As the leading candidate for the Republican presidential nomination, he is in no hurry to see the Georgia matter, or the other three criminal cases against him, go to trial. In the separate federal election interference case Mr. Trump faces in Washington, D.C., his lawyers have asked that the trial start safely beyond the November 2024 general election — in April 2026.

In Georgia, the possibility that even a portion of the sprawling case may go to trial in October remains up in the air. The removal efforts have much to do with that.

There is a possibility that if one of the five defendants seeking removal is successful, then all 19 will be forced into federal court. Many legal scholars have noted that the question is unsettled.

“We are heading for uncharted territory at this point, and nobody knows for sure what is in this novel frontier,” Donald Samuel, a veteran Atlanta defense attorney who represents one of the defendants in the Trump case, Ray Smith III, wrote in an email. “Maybe a trip to the Supreme Court.”

The dizzying legal gamesmanship reflects the unique nature of a case that has swept up a former president, a number of relatively obscure Georgia Republican activists, a former publicist for Kanye West and lawyer-defendants of varying prominence. All bring their own agendas, financial concerns and opinions about their chances at trial.

And of course, one of them seeks to regain the title of leader of the free world.

Some of the defendants seeking a speedy trial may believe that the case against them is weak. They may also hope to catch prosecutors unprepared, although in this case, Fani T. Willis, the district attorney, has been investigating for two and a half years and has had plenty of time to get ready.

A woman dressed in black stands at a podium.
Fani T. Willis, the district attorney, has been investigating the case for two and a half years. Kenny Holston/The New York Times

Another reason that some may desire a speedy trial is money.

Ms. Willis had originally sought to start a trial in March, but even that seemed ambitious given the complexity of the case. Harvey Silverglate, the lawyer for Mr. Eastman, said he could imagine a scenario in which a verdict might not come for three years.

“And Eastman is not a wealthy man,” he said.

Mr. Silverglate added that his client “doesn’t have the contributors” that Mr. Trump has. “We are going to seek a severance and a speedy trial. If we have a severance, the trial will take three weeks,” he predicted.

How long would a regular racketeering trial take? Brian Tevis, an Atlanta lawyer who negotiated the bond agreement for Rudolph W. Giuliani, Mr. Trump’s former personal lawyer, said that “the defense side would probably want potentially a year or so to catch up.”

“You have to realize that the state had a two-year head start,” he said. “They know what they have, no one else knows what they have. No discovery has been turned over, we haven’t even had arraignment yet.”

In addition to Mr. Meadows, Jeffrey Clark, a former Justice Department official, is already seeking removal, as is David Shafer, the former head of the Georgia Republican Party; Shawn Still, a Georgia state senator; and Cathy Latham, the former chair of the Republican Party in Coffee County, Ga. Mr. Trump is almost certain to follow, having already tried and failed to have a state criminal case against him in New York moved to federal court.

A man in a dark suit and red tie walks outside an airport.
Former President Donald J. Trump informed the court that he intended to sever his case from the rest of the defendants.Doug Mills/The New York Times

The indictment charges Mr. Meadows with racketeering and “solicitation of violation of oath by public officer” for his participation in the Jan. 2, 2021 call in which Mr. Trump told the Georgia secretary of state that he wanted to “find” enough votes to win Georgia. The indictment also describes other efforts by Mr. Meadows that prosecutors say were part of the illegal scheme to overturn the 2020 election.

Mr. Meadows’s lawyers argue that all of the actions in question were what “one would expect” of a White House chief of staff — “arranging Oval Office meetings, contacting state officials on the president’s behalf, visiting a state government building, and setting up a phone call for the president” — and that removal is therefore justified.

Prosecutors contend that Mr. Meadows was in fact engaging in political activity that was not part of a chief of staff’s job.

The issue is likely to be at the heart of Mr. Trump’s removal effort as well: In calling the secretary of state and other Georgia officials after he lost the election, was he working on his own behalf, or in his capacity as president, to ensure that the election had run properly?

Anthony Michael Kreis, an assistant law professor at Georgia State University, said that the indictment may contain an Easter egg that could spoil Mr. Trump’s argument that he was intervening in the Georgia election as part of his duty as a federal official.

The indictment says that the election-reversal scheme lasted through September 2021, when Mr. Trump wrote a letter to Georgia’s secretary of state asking him to take steps to decertify the election.

Mr. Trump, by that point, had been out of federal office for months.

“By showing the racketeering enterprise continued well beyond his time in office,” Mr. Kreis said in a text message, “it undercuts any argument that Trump was acting in a governmental capacity to ensure the election was free, fair and accurate.”

Richard Fausset is a correspondent based in Atlanta. He mainly writes about the American South, focusing on politics, culture, race, poverty and criminal justice. He previously worked at The Los Angeles Times, including as a foreign correspondent in Mexico City. More about Richard Fausset

Danny Hakim is an investigative reporter. He has been a European economics correspondent and bureau chief in Albany and Detroit. He was also a lead reporter on the team awarded the 2009 Pulitzer Prize for Breaking News. More about Danny Hakim"

Why Trial Dates for Trump’s Georgia Case Are So Uncertain - The New York Times

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