Clues about timing
District Attorney Fani Willis’s sprawling racketeering case entered a intermediate phase earlier this fall after last-minute plea deals with two defendants who had demanded a speedy trial, Kenneth Chesebro and Sidney Powell, cleared the legal calendar.
The current timeline is unclear for the remaining 15 defendants beyond a few upcoming deadlines for case discovery and pre-trial motions.
Willis and her team are asking that McAfee schedule a trial for Aug. 5, 2024, just a few weeks after the Republican National Convention. Trump’s legal team has already voiced its opposition and asked McAfee for a chance to argue its side in a hearing. McAfee has yet to respond.
The afternoon hearing could provide a glimpse of McAfee’s thinking on a reasonable trial timeline — and whether the remaining defendants should go to trial together or in groups.
In that hearing, defendant Jeffrey Clark, a former Justice Department official, will request a three-month postponement of some deadlines in his case so he can defend himself before a Washington, D.C., disciplinary panel in January. Like the Fulton County case, the disciplinary hearing focuses on Clark’s effort to convince Justice Department officials to aid Trump’s effort to overturn the 2020 election.
Separately, former White House Chief of Staff Mark Meadows has requested a two-month extension of some deadlines. He cited his effort to have the case against him removed to federal court. A federal district judge denied that request, but Meadows has appealed.
Friday will mark the courtroom debut of Steve Sadow, Trump’s lead Atlanta attorney, in the case. Since being hired on the same day that Trump surrendered at the Fulton County jail in late August, the veteran defense attorney has filed lots of paperwork, observed several federal removal hearings of co-defendants — and made the surprising decision not to push for Trump’s case to be removed to federal court. But Team Trump has yet to make any sort of official, in-person argument before McAfee.
Credit: Miguel Martinez
Credit: Miguel Martinez
On Friday’s agenda is a set of procedural motions challenging various aspects of the indictment on more technical grounds that Sadow has adopted. They include motions from defendants Ray Smith, David Shafer and Bob Cheeley. It’s possible the parties could also discuss an unusual request Sadow made last month, which asked Willis to contact the Justice Department special counsel prosecuting Trump in Washington to determine if he will disclose discovery letters and lists of evidence from the federal case.
The random selection of McAfee, a 34-year-old jurist less than a year into the job, initially raised some eyebrows. But the judge has received wide praise so far for his calm and focused approach. He has quickly diffused several thorny issues, from the DA’s push to jail defendant Harrison Floyd to attempts to sanction Nathan Wade, one of the case’s top prosecutors, because of mailers his law firm sent defendants.
“While presumably embarrassing on the part of Special Prosecutor Wade and his firm, this case should not be sidetracked by matters which facially lack merit,” McAfee ruled in the latter fight.
In September and October, the judge patiently trudged through a series of pretrial filings from Powell and Chesebro’s attorneys. It will be telling to see how he responds to similar efforts from defendants such as Trump, Smith, Shafer, who have hired some of the most aggressive and well-respected defense attorneys in the state. Do their efforts throw McAfee off his game?
Legislative testimony in spotlight
A notable item on the agenda involves a challenge from Smith, a Trump attorney who sought to convince Georgia legislators to overturn the election based on false voting fraud claims.
In the filing, known as a demurrer, Smith argues that it’s not a crime to lie to state lawmakers. He says the state law prohibiting false statements requires that they be made to a state “agency or department,” and the General Assembly doesn’t count.
Credit: NATRICE MILLER
Credit: NATRICE MILLER
Smith is also contesting a charge that he solicited lawmakers to violate their oaths of office. He argues it’s not a violation of lawmakers’ oaths for them to enact legislation that is unconstitutional, even knowingly. He says it happens sometimes, and courts overturn unconstitutional acts. And, besides, the Georgia Constitution prohibits punishing lawmakers for their acts under the Gold Dome, he maintains.
Prosecutors say the false statements about the election were on matters under the jurisdiction of the Secretary of State and the GBI. They say Smith is not charged with soliciting legislators to “simply pass legislation,” but to illegally appoint presidential electors. And they say any immunity lawmakers enjoy from prosecution for taking unconstitutional action does not apply to Smith, who is not a lawmaker.
Trump and others have adopted Smith’s motion.
Other issues at play
McAfee will also hear several challenges similar to those initially pursued by Chesebro and Powell which he had already dismissed. One is an argument that the U.S. Constitution’s Supremacy Clause demands that state charges be dismissed and another that defendants’ actions were protected speech under the First Amendment and thus not criminal.
During an October hearing, McAfee suggested that the issues were best debated during the trial. Some legal experts interviewed by the AJC said the defense attorneys might be evoking the issues now, even if McAfee was previously unfavorable, to create a legal record so they could appeal later.
Norm Eisen, former President Barack Obama’s ethics czar who has closely tracked the Georgia case, said some of the issues being discussed are “typical” for racketeering cases while others are “farcical.”
“In sum, it’s a mix of typical and genuine but very likely unsuccessful criminal law arguments and more risible ones,” he said.
Staff writer Bill Rankin contributed to this article.