Opinion: The legal strategy that seems to be unfolding in Trump-related RICO case

Insights from a noted former federal prosecutor.

In the Donald Trump Georgia RICO case there appears to be a concerted strategy being carried out by the 19 defendants that is hidden from public view. The efforts of former Trump Chief of Staff Mark Meadows to remove his case to federal court and the demands of two co-defendants, Kenneth Chesebro and Sidney Powell, for speedy trials are not separate unrelated events. What we are actually witnessing is a 19-defendant coordinated strategy to break up the RICO case into multiple trials.

I know this because since leaving the government as a federal prosecutor, I have represented defendants in complicated multi-defendant trials including federal RICO actions. The standard practice at the outset of multi-defendant cases is for the defense lawyers to enter into a joint defense agreement (either orally or in writing) to protect their conversations as privileged and to share information and strategy.

Under a joint defense agreement, defendants’ lawyers would normally try to formulate a plan to muck up and attack the prosecution’s case. Such a plan is of course totally proper, but it nonetheless is an effort to game the system to the advantage of their clients.

Credit: contributed

Credit: contributed

By breaking up the case into multiple trials, the remaining defendants including Trump get to preview the prosecution’s case, drag out the trials, delay the other defendants from having to face the music and make it more likely to force better plea deals for their individual clients from a district attorney who does not want to litigate the same case multiple times.

We are already seeing this strategy in play. There are three defendants, who as former federal government officials, have a plausible legal theory to request their cases be removed to federal court — former president Donald Trump, former Assistant Attorney General Jeffrey Clark, and Meadows. It is obvious that Meadows was selected as a trial balloon on the removal issue before Trump and Clark filed similar motions.

Of the three, Meadows had loosely defined duties as a federal official and was a lower level official than Trump or Clark. That part of the overall strategy did not end well last week for Meadows and his co-defendants. Federal District Court Judge Steve C. Jones rejected Meadows’ motion for removal. Even though Judge Jones stated he would consider other defendants’ motions for removal on their individual merits, he essentially gave the death knell to those efforts when he wrote that interfering in Georgia’s election is not within the scope of the duties of an official of the executive branch — “[i]t would be inconsistent with federalism and the separation of powers, to find that activities [election procedures] which are delegated to the states are also within the scope of executive power because the executive branch may advise Congress.”

This leaves the defense strategy of breaking up the state case into at least two separate trials because of Chesebro’s and Powell’s demands for a speedy trial. It is no coincidence that these two co-defendants were selected to spearhead this strategy because the quantity of evidence directly against them on the predicate criminal acts for which they are charged in the RICO count appears to be less than against the other defendants. Additional demands for speedy trials may yet follow from other co-defendants.

The only way Trump and the other defendants who opt out of a speedy trial can avoid the October trial date is to move to have their cases severed from the co-defendants demanding a speedy trial. The single compelling argument they have for severance is their claim that they do not have enough time to prepare for an October trial.

The obvious answer to their professing lack of sufficient time to prepare is that if two co-defendants can be prepared to defend the prosecution’s case in October, so can the rest of the defendants. In other words, the two co-defendants’ speedy trial demands are admissions that the remaining co-defendants are not being upfront about how much time they really need to prepare.

Even though the quantity of the direct evidence against Chesebro and Powell may not be as much as against Trump and the other defendants, they still have to be prepared to defend themselves on the entire RICO conspiracy. As the assistant district attorney explained in court last week, each criminal act in the conspiracy is admissible against all 19 defendants, even though each defendant may not have been directly involved in each of the acts.

Bottom line — if Judge Scott McAfee, the judge overseeing the RICO case, calls the defendants’ bluff and orders all the defendants to appear for an October trial, how long do you think it will take for Chesebro and Powell to withdraw their speedy trial demands and expose the 19 defendants’ grand plan?

Nick Akerman is a New York City-based lawyer who represents clients in civil and criminal matters and government investigations. Akerman was an assistant special prosecutor with the Watergate Special Prosecution Force.