The brief came in response to a request from McAfee. During a hearing last week, he declined to split off, or sever, co-defendants Kenneth Chesebro and Sidney Powell from one another after both demanded speedy trials. Both Chesebro and Powell are scheduled to go to trial on Oct. 23, while roughly a dozen other defendants have filed motions to sever themselves from some or all of the other parties.
McAfee asked the DA’s office to weigh in on whether Chesebro and Powell should be separated from the other 17 co-defendants, which include former President Donald Trump, ex-White House Chief of Staff Mark Meadows and onetime New York City Mayor Rudy Giuliani.
A Fulton grand jury last month handed up a 41-count racketeering indictment against the group in conjunction with Trump’s efforts to cling to power in Georgia and elsewhere following the 2020 election.
Prosecutors maintain that all 19 defendants should be tried together and have said they’re ready to try everyone on Oct. 23. They plan to use the same evidence and witnesses against all of the parties given the underlying RICO conspiracy charge, the DA’s office wrote in its brief.
It raised several concerns about what could happen if McAfee grants some or all of the severance requests. Among them: that whichever defendants are tried in court last would have the built-in advantage of knowing much of the prosecution’s evidence, given that they would have time to observe prosecutors in the earlier trials.
They are also worried defendants who sever their case from Chesebro and Powell could file speedy trial demands after the Oct. 23 trial begins, which could create at least three different sets of trials in the case (Chesebro and Powell, a second speedy trial group and those who want their cases to proceed at a normal pace).
“Realistically, holding three or more simultaneous, high-profile trials would create a host of security issues and would create unavoidable burdens on witnesses and victims, who would be forced to testify three or more times on the same set of facts in the same case,” they argued.
To protect against that, prosecutors asked that before McAfee grants any severance requests from defendants, that he require parties to pledge ahead of time that they won’t later demand speedy trials. They also asked that defendants who are seeking to sever their case from Chesebro and Powell because they’re not ready for trial tell the court when they expect to be ready.
In a separate court document late Tuesday, Trump’s Atlanta attorneys stated that the Republican presidential candidate waived his right to a speedy trial in exchange for severance from any co-defendant who demands a fast court date.
During a hearing last week, McAfee appeared highly skeptical of trying all defendants together.
“It seems a bit unrealistic that we could handle all 19 in 40-something days,” McAfee said. “That’s my initial reaction.”
He suggested he was sympathetic to arguments from various defense attorneys, including Trump’s, who have argued they had scheduling conflicts and wouldn’t have enough time to get ready.
During the hearing, prosecutors estimated their case would take roughly four months to try in court, excluding jury selection, and require them to call 150 witnesses.
It’s possible that McAfee addresses prosecutors’ request at a hearing on Thursday morning regarding separate legal motions from Chesebro and Powell.