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McAfee Has Denied a Motion to Have Powell and Chesbro Tried Separately

Under Georgia law, a criminal defendant has a right to a trial within 70 days of indictment. Alleged RICO co-conspirators Kenneth Chesebro and Sidney Powell have both requested trials within 70 days, as is their right. They also asked Judge Scott McAfee to sever their trials from each other. Yesterday he ruled "Nope, not doing that." He appeared very skeptical about trying all 19 defendants on Oct. 23, the date set for Chesebro. He also does not want two separate trials, one for Powell and one for Chesebro starting Oct. 23, because the prosecution has said they have 150 witnesses and expect the trials to take 4 months. McAfee is not keen on two parallel trials that last 4 months and then potentially another 17 trials also lasting 4 months afterwards.

The nature of a RICO case is that all the defendants are tied together. All defendants in a conspiracy are responsible for acts of the other conspirators, which makes all the trials very long when there are many conspirators and criminal acts. Since Powell and The Cheese have a legal right to a speedy trial, McAfee ruled that he will try the two of them together starting Oct. 23. Thus, they are severed from the others, just not from each other. In other words, The Cheese cannot stand alone. It is a bit odd that they will be tried for conspiracy even though they don't know each other, but that's the way the RICO law works.

Another complication is that yesterday three more defendants—Robert Cheeley, Jeffrey Clark, and Shawn Still—also asked to sever their cases from the RICO 17. Will McAfee decide to have just two or three trials? For example, one on Oct. 23 for anyone in a hurry and one later for folks not in a hurry? He also has to take into account that the federal case against Trump is scheduled to start on March 4 and he surely wants to avoid interfering with that. This gives him an incentive to do it in two batches, one running from Oct. 2023 to Feb. 2024 and one later next year. He could ask all the defendants to pick a batch.

Another factor is that some of the defendants are likely to flip, plead guilty, and not be tried at all. So, McAfee is going to have a full-time job just figuring out how to run his trials. This situation is probably something Special Counsel Jack Smith was worried about, so he indicted only Donald Trump to avoid this kind of situation. He can always indict the other six co-conspirators after Trump's trial is finished.

One interesting part of this is that most or all of the evidence that will be used against Trump will get a dress rehearsal in the Oct. 23 case, no matter whether it is two, five, or some other number of defendants. The judge has a fair amount of leeway in setting trial dates. If he wants to have all the small fish be in the Oct. 23 batch, he could do that, especially since Georgia law requires a speedy trial (although there is no maximum time from the indictment, just a provision that defendants may demand a trial within 70 days if they so choose). (V)

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