Fulton judge: Trump, 16 others will not go to trial in October

Ruling splits Fulton Trump defendants into two groups
Fulton County Superior Judge Scott McAfee hears motions from attorneys representing Ken Chesebro and Sidney Powell in Atlanta on Thursday, Sept. 14, 2023. They ask the judge to give them access to transcripts of those who testified before the special purpose grand jury and to allow them to interview grand jurors who handed up the indictment.
Miguel Martinez /miguel.martinezjimenez@ajc.com

Credit: Miguel Martinez/AJC

Credit: Miguel Martinez/AJC

Fulton County Superior Judge Scott McAfee hears motions from attorneys representing Ken Chesebro and Sidney Powell in Atlanta on Thursday, Sept. 14, 2023. They ask the judge to give them access to transcripts of those who testified before the special purpose grand jury and to allow them to interview grand jurors who handed up the indictment. Miguel Martinez /miguel.martinezjimenez@ajc.com

The Fulton County judge overseeing Georgia’s sprawling election interference case on Thursday split its 19 defendants into two groups, saving former President Donald Trump from going to trial in October.

Superior Court Judge Scott McAfee ruled that 17 of the defendants would be separated — or severed, in legal parlance — from Kenneth Chesebro and Sidney Powell, who have demanded speedy trials and are set to be tried on Oct. 23.

In a seven-page order, McAfee said severing the 17 defendants who did not want a speedy trial was “simply a procedural and logistical inevitability.” He cited the five ongoing requests for federal removal, defense attorneys with scheduling conflicts this fall and parties who wanted more time to examine the state’s voluminous discovery — evidence and other information which must be shared between the parties before trial.

“The precarious ability of the Court to safeguard each defendant’s due process rights and ensure adequate pretrial preparation on the current accelerated track weighs heavily, if not decisively, in favor of severance,” McAfee wrote.

The ruling is a blow to the Fulton District Attorney’s office, which argued in favor of keeping all 19 defendants together. In a court filing earlier this week, DA Fani Willis said trying defendants in multiple groups would create a “logistical quagmire” for courthouse staff, witnesses and jurors and that judicial efficiency merited trying the group together.

Special Prosecutor Nathan Wade and  Daysha D'Anya Young, representing the District Attorney's office, confer as they argue argue before Fulton County Superior Judge Scott McAfee. McAfee is hearing motions from attorneys representing Kenneth Chesebro and Sidney Powell on Thursday, Sept. 14, 2023.
Miguel Martinez /miguel.martinezjimenez@ajc.com

Credit: Miguel Martinez

icon to expand image

Credit: Miguel Martinez

McAfee, meanwhile, voiced concerns about the logistics of holding a “mega-trial.”

“The Fulton County Courthouse simply contains no courtroom adequately large enough to hold all 19 defendants, their multiple attorneys and support staff, the sheriff’s deputies, court personnel and the State’s prosecutorial team. Relocating to another larger venue raises security concerns that cannot be rapidly addressed,” he said.

McAfee worried that combining such a large group of defendants would lead to a lengthy trial. (The DA’s office has estimated the case will take roughly four months to try, excluding jury selection, and that it plans to call some 150 witnesses.)

“Each additional defendant increases the length of opening and closing arguments, cross- examination and the number of evidentiary objections,” he wrote. “Each additional defendant increases the risk that the trial must be paused due to the unexpected absence of a party or attorney.”

A month ago, a Fulton grand jury handed up the 41-count racketeering indictment tied to Trump’s attempt to hold onto power in Georgia and other swing states following the 2020 election.

The judge wrote that “additional divisions of these 17 defendants may well be required” in the future. Roughly a dozen parties have filed motions to sever themselves from some or all of their other co-defendants, though McAfee has yet to rule on those requests.

The DA’s office has raised concerns that a second group of defendants could demand speedy trials separately from Chesebro and Powell, raising the potential for a third trial.

McAfee noted that nine defendants, including Trump, have indicated they were waiving their rights to a speedy trial in exchange for being severed from Powell and Chesebro. The judge said any other defendant who files for a speedy trial before Oct. 23 will “immediately join” Powell and Chesebro.

McAfee said he intends to have a jury selected and sworn in by Nov 3 to adhere to speedy trial deadlines.

Also Thursday, McAfee presided over a 90-minute hearing to consider defense requests to be able to interview grand jurors who handed up the 41-count indictment and to have access to transcripts of the testimony of the roughly 75 witnesses who testified before the special purpose grand jury that investigated the case last year.

Special prosecutor Nathan Wade argued that the state does not have to turn over all the transcripts to the defense. The only exceptions, he said, are transcripts of testimony by attorney Bob Cheeley, who is charged with committing perjury before the special grand jury, and any of the special grand jury witnesses who are going to testify for the state at the upcoming trial.

McAfee said his initial reaction is that “everything should be turned over,” but he said he wanted to hear more from both sides before making a final decision.

Scott Grubman, an attorney representing Chesebro, told McAfee the defense wants to interview the grand jurors who handed up the indictment to make sure they acted independently of the prosecution.

“I have very serious questions, very serious questions based on publicly available information, which unfortunately is all we have to go on, that this grand jury, as well as the special purpose grand jury, was independent,” he said. “But we don’t know that. That’s the problem. ... And in order for us to find out the answer, which clearly we’re entitled to find out, we have to be able to access information.”

Grubman noted that Georgia law only prohibits the disclosure of a grand jury’s deliberations, and he said the defense lawyers would not be asking questions about that. And he noted he would only question those grand jurors who voluntarily agreed to be interviewed.

Fulton prosecutor Daysha D’Anya Young strongly opposed the interviews but said if it is allowed, the court should be involved. She also noted that after the grand jurors’ names became public after the indictment, some sought police protection.

“These grand jurors have already experience doxing, threats,” Young said. “They’ve contacted our office because of safety concerns. We’ve had to contact law enforcement agencies all over Fulton county to then make sure that these grand jurors are safe. So I think one consideration the court also needs to make in allowing this is the safety of these grand jurors and their concerns that have already been voiced.”

McAfee asked the defense attorneys to submit any proposed questions they planned to ask and to provide him case law that permits such a line of inquiry.

“And then we’ll get to we can get into the logistics from there, because I think there’s a way to accommodate the case law cited by the state about the general secrecy, but still allowing the defense their ability to make sure that the grand jury fulfilled its duty in a matter recognized by law,” he said.