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The Legal Beagles Have Been Unleashed

All 19 defendants in the Georgia RICO case have surrendered. All but one have been released on bail. Now what? In short, there will be a huge flurry of motions from all 19 defendants, with Judge Scott McAfee ruling on them in rapid succession. Caren Morrison, a former federal prosecutor in New York, said: "You need a spreadsheet to keep track of it all."

Two of the defendants, Ken Chesebro and Sidney Powell, want a speedy trial in October. Georgia law says that they have a right to a trial within 70 days of their indictment. The judge said: "Fine with me" and scheduled it for Oct. 23. In contrast, Donald Trump wants a leisurely trial—say, in 2026 or later. One of the arguments for delaying the trials is that Fulton County DA Fani Willis has been working on the case for 2½ years. That gives her a head start, so the defense needs 2½ years just to do discovery and catch up. Willis also wants to try all 19 in one trial; most or all of the 19 don't want that.

We wish McAfee good luck trying to make everyone happy. Most likely he will allow anyone who wants a speedy trial to have one, since that is their legal right. If enough of the Atlanta 19 go that route, Trump's trial will have many fewer defendants and will be simpler. Also, if half a dozen or even a dozen co-defendants have been found guilty or pleaded guilty by the time Trump goes on trial, that will actually make Willis' job easier. If she can get a series of co-defendants to take the stand and say: "I conspired with Trump to violate the law in order to keep him in power illegally" that will surely help her case. Trump is not going to like that, but the law says "a trial within 70 days," so he's stuck with it.

Unless The Chese changes his mind, his trial will be spectacular. There is evidence that he told an Arizona lawyer that he knew his fake electors plan was not legal. There is also evidence that he drafted fake elector certificates and sent them to the fake electors in New Mexico. He also coordinated often with Rudy Giuliani, arranging fake electors in other states. Due to the nature of the Georgia RICO law, all of his acts relating to fake electors in all states can be introduced as evidence. It is hard to imagine him winning this one, and since he is barely known and Trump is not technically involved, a hung jury seems unlikely. If convicted, he could be looking at 20 years of free room and board in Georgia. That might inspire him to switch sides, which would be horrific for Giuliani and Trump, since he knows everything about the fake electors scheme and who approved what and who did what. A conviction or plea deal would be momentous and put the other 18 in great jeopardy. Note that The Chese is 62 years old. That doesn't mean he's moldy and beyond saving, but it does mean that 20 years in the crowbar hotel would be on the precipice of a life sentence.

Another issue is "Which court?" Mark Meadows and four others want to move the case to federal court because then they can claim what they did was part of their job and thus not a crime. Willis will argue that overturning an election was not part of their job descriptions. The first hearing on that is today before U.S. District Judge Steve Jones in Georgia. Jones is a Black appointee of Barack Obama. That shouldn't matter, of course, but sometimes it does. If Jones takes the case, that could affect all 19 defendants.

In order to win, Meadows has to convince the Judge that all of the specific acts that he did to try to keep Trump in power were governmental and not political in nature. Willis is going to argue that the Hatch Act expressly forbids federal officials from using their office for political gain, so what he did violated the Hatch Act and thus could not possibly be part of his job. Job descriptions generally don't require employees to commit crimes (except jobs with the Mafia, or coaching USC football). Willis is likely to put several witnesses on the stand to show that Meadows pressured them. Georgia Secretary of State Brad Raffensperger is very likely to be one of them. She is also likely to call on Frances Watson, the chief investigator in Raffensperger's office. If all the witnesses say that Meadows and Trump were acting for the campaign, not the presidency, then Jones will likely deny the motion to move the case to federal court.

Another reason Meadows wants to move the case is that would change the jury pool. In state court, the jury pool is very blue Fulton County. In federal court it is a much more Trump-friendly 10-county region including plenty of suburban and rural areas. And remember, it takes only one person who refuses to convict to get a hung jury. That is far more likely in the federal jury pool. Meadows knows all of this, but so do Willis and the Judge.

One argument against "It was part of my job" is a letter Trump wrote to Raffensperger in Sept. 2021, asking him to decertify the election. He wasn't president in Sept. 2021, so Willis will argue that the criminal enterprise extended beyond Trump's presidency and thus was not part of his job. If it were, he would have stopped on Jan. 20, 2021, at noon.

Many other pretrial motions are expected. They must be filed within 10 days of arraignment, a cutoff that hasn't arrived yet for any of the defendants, but soon will. Every lawyer will file to dismiss the case, for example, because the grand jury was somehow tainted. Others will file to sever their cases from the main RICO case and be tried individually. Just scheduling all the hearings will require a spreadsheet. And don't forget, there is also plenty of action in the D.C. and Florida cases. We are definitely not going to make any promises about Trump-free days for a while. Maybe not for the rest of this geologic era.

Speaking of D.C., there is also Trump-related action there today as well. Judge Tanya Chutkan is scheduled to consider—and possibly set—the date of Donald Trump's trial in the Jan. 6 conspiracy case. Special Counsel Jack Smith wants it to start on Jan. 2, 2024. Trump would prefer sometime in 2026. Good luck with that. One complication is that she has to coordinate with McAfee to avoid a trial in D.C. and a trial in Atlanta at the same time, but she knows that of course. (V)

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