Trump and His Co-Defendants in Georgia Are Already at Odds

Even as former President Donald Trump and his 18 co-defendants in the Georgia election interference case turned themselves in one by one at an Atlanta jail this past week, their lawyers began working to change how the case will play out.

They are already at odds over when they will have their day in court, but also, crucially, where. Should enough of them succeed, the case could split into several smaller cases, perhaps overseen by different judges in different courtrooms, running on different timelines.

Five defendants have already sought to move the state case to federal court, citing their ties to the federal government. The first one to file — Mark Meadows, Trump’s chief of staff during the 2020 election — will make the argument for removal Monday, in a hearing before a federal judge in Atlanta.

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Federal officials charged with state crimes can move their cases to federal court if they can convince a judge that they are being charged for actions connected to their official duties, among other things.

In the Georgia case, the question of whether to change the venue — a legal maneuver known as removal — matters because it would affect the composition of a jury. If the case stays in Fulton County, the jury will come from a bastion of Democratic politics where Trump was trounced in 2020. If the case is removed to federal court, the jury will be drawn from a 10-county region of Georgia that is more suburban and rural — and somewhat more Trump-friendly. Because it takes only one not-guilty vote to hang a jury, this modest advantage could prove to be a very big deal.

The coming fights over the proper venue for the case are only one strand of a complicated tangle of efforts being launched by a gaggle of defense lawyers now representing Trump and the 18 others named in the 98-page racketeering indictment. This past week, the lawyers clogged both state and federal court dockets with motions that will also determine when the case begins.

Already, one defendant’s case is splitting off as a result. Kenneth Chesebro, a lawyer who advised Trump after the 2020 election, has asked for a speedy trial, and the presiding state judge has agreed to it. His trial is now set to begin Oct. 23. Another defendant, Sidney Powell, filed a similar motion Friday, and a third, John Eastman, also plans to invoke his right to an early trial, according to one of his lawyers.

Soon after Chesebro set in motion the possibility of an October trial, Trump, obviously uncomfortable with the idea of going to court so soon, informed the court that he intended to sever his case from the rest of the defendants. Ordering separate trials for defendants in a large racketeering indictment can occur for any number of reasons, and the judge, Scott McAfee, has made clear the early trial date applied only to Chesebro.

Trump’s move came as no surprise. As the leading candidate for the Republican presidential nomination, he is in no hurry to see the Georgia matter, or the other three criminal cases against him, go to trial. In the separate federal election interference case Trump faces in Washington, D.C., his lawyers have asked that the trial start safely beyond the November 2024 general election — in April 2026.

In Georgia, the possibility that even a portion of the sprawling case may go to trial in October remains up in the air. The removal efforts have much to do with that.

There is a possibility that if one of the five defendants seeking removal is successful, then all 19 will be forced into federal court. Many legal scholars have noted that the question is unsettled.

“We are heading for uncharted territory at this point, and nobody knows for sure what is in this novel frontier,” Donald Samuel, a veteran Atlanta defense attorney who represents one of the defendants in the Trump case, Ray Smith III, wrote in an email. “Maybe a trip to the Supreme Court.”

The dizzying legal gamesmanship reflects the unique nature of a case that has swept up a former president, a number of relatively obscure Georgia Republican activists, a former publicist for Kanye West and lawyer-defendants of varying prominence. All bring their own agendas, financial concerns and opinions about their chances at trial.

And, of course, one of them seeks to regain the title of leader of the free world.

Some of the defendants seeking a speedy trial may believe that the case against them is weak. They may also hope to catch prosecutors unprepared, although in this case, Fani Willis, the district attorney, has been investigating for 2 1/2 years and has had plenty of time to get ready.

Another reason that some may desire a speedy trial is money.

Willis had originally sought to start a trial in March, but even that seemed ambitious given the complexity of the case. Harvey Silverglate, Eastman’s lawyer, said he could imagine a scenario in which a verdict might not come for three years.

“And Eastman is not a wealthy man,” he said.

Silverglate added that his client “doesn’t have the contributors” that Trump has. “We are going to seek a severance and a speedy trial. If we have a severance, the trial will take three weeks,” he predicted.

How long would a regular racketeering trial take? Brian Tevis, an Atlanta lawyer who negotiated the bond agreement for Rudy Giuliani, Trump’s former personal lawyer, said that “the defense side would probably want potentially a year or so to catch up.”

“You have to realize that the state had a two-year head start,” he said. “They know what they have. No one else knows what they have. No discovery has been turned over. We haven’t even had arraignment yet.”

In addition to Meadows, Jeffrey Clark, a former Justice Department official, is already seeking removal, as is David Shafer, former head of the Georgia Republican Party; Shawn Still, a Georgia state senator; and Cathy Latham, former chair of the Republican Party in Coffee County, Georgia. Trump is almost certain to follow, having already tried and failed to have a state criminal case against him in New York moved to federal court.

The indictment charges Meadows with racketeering and “solicitation of violation of oath by public officer” for his participation in the Jan. 2, 2021, call in which Trump told the Georgia secretary of state that he wanted to “find” enough votes to win Georgia. The indictment also describes other efforts by Meadows that prosecutors say were part of the illegal scheme to overturn the 2020 election.

Meadows’ lawyers argue that all of the actions in question were what “one would expect” of a White House chief of staff — “arranging Oval Office meetings, contacting state officials on the president’s behalf, visiting a state government building and setting up a phone call for the president” — and that removal is therefore justified.

Prosecutors contend that Meadows was, in fact, engaging in political activity that was not part of a chief of staff’s job.

The issue is likely to be at the heart of Trump’s removal effort as well: In calling the secretary of state and other Georgia officials after he lost the election, was he working on his own behalf, or in his capacity as president, to ensure that the election had run properly?

Anthony Michael Kreis, an assistant law professor at Georgia State University, said the indictment may contain an Easter egg that could spoil Trump’s argument that he was intervening in the Georgia election as part of his duty as a federal official.

The indictment says that the election-reversal scheme lasted through September 2021, when Trump wrote a letter to Georgia’s secretary of state asking him to take steps to decertify the election.

Trump, by that point, had been out of federal office for months.

“By showing the racketeering enterprise continued well beyond his time in office,” Kreis said in a text message, “it undercuts any argument that Trump was acting in a governmental capacity to ensure the election was free, fair and accurate.”

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