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CNN Live Event/Special

First Televised Hearing In Trump GA Case. Aired 1:30-2p ET

Aired September 06, 2023 - 13:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[13:30:00]

BRIAN RAFFERTY, ATTORNEY FOR SIDNEY POWELL: Because some other defendants, as we have in this case, have said they're not ready for trial. That's ordinarily what happens in federal court.

But here in state court, looking at The State law and the state Speedy Trial Act, by virtue of our demand and the various severance motions that other defendants have filed saying they're not ready for trial, I think Ms. Powell has to be severed out from the remaining 17.

So the question for today, in my mind, is whether the trial of Ms. Powell will be joint with Mr. Chesebro or not.

I think based on all of the law that I've seen -- and I haven't seen anything to the contrary -- her demand for speedy trial cannot be trumped by the desire of the government to try everyone together when other defendants have moved to severance and they're not ready.

So that's sort of the first point I wanted to just make, is although the court hasn't issued a scheduling order, I think we are on the same path as Mr. Chesebro about when this trial should happen.

Which leads us to sort of the second question about whether or not Mr. Chesebro and Ms. Powell should be tried together.

And I echo many of the things that my co-defendants' counsel have said, although I have a very different view of the evidence and the evidence as it relates to Ms. Powell.

I'll just point out, in the indictment, the government was kind enough to list on page 16 or 17 or 18 a summary of the various manner and means of the indictment.

And if you look at that, you'll see that Ms. Powell had nothing to do with most of it.

Ms. Powell had nothing to do with false statements to state legislators, nothing to do with false statements to high-ranking government officials, nothing to do with false Electoral College documents.

Nothing to do with the election worker here in Fulton County, nothing to do with solicitations of the Department of justice, nothing to do with solicitations to the vice president. The only thing where she's alleged to have involvement, as my co-

counsel have said, is this Coffee County matter. And frankly, Your Honor, the way the government has characterized that, the evidence is going to show they're incorrect.

She was not the driving force. The evidence will show that she was not the driving force behind that, that there were other lawyers not mentioned in this case that were actually the driving force behind that.

We submitted a Brady request already to the government, before this hearing, asking for a host of different kinds of exculpatory material that we believe the government has that will show, that that will show she was not the person that was behind this, as has been alleged in this indictment.

Her typewritten name does appear on a contract but she never signed the contract. And the contract isn't even for Coffee County. It's for another state. And she never signed it.

And the most important part of this case, Your Honor, with respect to the Coffee County aspect of this case, is the question of authorization and whether or not the visit down there was authorized or not.

And there's a lot of public documents that are out there that demonstrate that numerous folks associated with Coffee County authorized that visit. The video itself shows that.

Ms. Powell's name appears maybe a dozen times in this indictment. She has nothing to do with the Electoral College aspects of this, which is going to allow all sorts of complex testimony about constitutional issues and things of that nature.

Her only involvement, as alleged by the government, is what happened in Coffee County, and even that they have wrong.

So why does that matter? Because my presentation, my cross- examination, my case is going to depend on my ability to present to a jury that she had nothing to do with what the government says she was involved in, in Coffee County. The evidence is not going to show what they say.

But all of that, all of my efforts is going to get washed away in days or weeks of testimony perhaps about the Constitution and whether or not and under what circumstances alternative electors can be put in place.

And whether the legal opinions of Mr. Chesebro and others have any sort of legal validity.

All of that is going to be prejudicial to my client. She's going to be sitting there for days, if not weeks, listening to this kind of testimony when the case, as to her, in Coffee County, really boils down to one day, January 7th. That's it.

The whole case is about whether or not that visit was authorized and what, if any, role she had in it, which is very little, if none.

So, you know, she's going to be prejudiced by all this other testimony about things that she had nothing to do with.

And as a matter of judicial economy, you have discretion -- as my counsel have said, you have discretion to make decisions in the interest of judicial economy.

I don't think a trial about Coffee County, if that's what we have a trial about, is going to take weeks or months. I think the trial could be over in a couple of days.

Most of it is on video that a lot of folks have seen and there's a handful of emails. And that's really it. There isn't that much evidence.

And so when the court thinks about its discretion, about how it can exercise that discretion and move this case along, move Mr. Chesebro's case along, the best way to do that, frankly, is to try the cases separately.

And I would ask the court to just exercise the discretion that it has, that my co-counsel have already set forth, and sever Mr. Powell's case from Mr. Chesebro's so she can get a fair trial.

I'm prepared to answer any other questions, Your Honor. I think I've laid out my arguments.

JUDGE SCOTT MCAFEE, FULTON COUNTY, GA, SUPREME COURT: Let me take up one, again, as it relates to the traditional framework. I think Mr. Chesebro's team took this up. But one of those obviously is the antagonistic defenses.

[13:35:08]

Are you joining their position that you don't anticipate that being a consideration here?

RAFFERTY: I don't think that there's antagonistic defenses because, as my co-counsel have said, my client doesn't know Mr. Chesebro, has never met him, has never really spoken with him. There's no emails or documents or anything else.

What he's accused of has absolutely nothing to do with Ms. Powell at all. So I don't see that as antagonistic.

It's just that evidence presented at a trial with Ms. Powell is going to prejudice her in the same way that Mr. Chesebro's lawyers said that evidence about whatever Ms. Powell did would prejudice Mr. Chesebro.

MCAFEE: OK.

RAFFERTY: Thank you, Your Honor.

MCAFEE: Thank you, sir.

(CROSSTALK)

UNIDENTIFIED PROSECUTOR: While Mr. Wooton is champing at the bit to address some of the arguments that counsel has made, I'll just briefly lay out a few things that the court has asked the state to be prepared to respond to.

Firstly, we will contend that a trial of these 19 co-defendants will take four months, and that does not include jury selection. And it's also predicated upon whether or not, of course, the defendants elect to testify or not. But four months is our time estimate.

In terms of the number of witnesses, there are in excess of 150 witnesses that The State intends to call, 150 witnesses.

Judge, we contend that we must prove the entire conspiracy against each and every one charged, each and every one charged.

So the court, in the interest of judicial economy, would have to make the decision as to whether or not the court wants to try the same case 19 times or two.

MCAFEE: Well, so to be clear, when you say two, has your position evolved from your filings of last week or from lately?

UNIDENTIFIED PROSECUTOR: It hadn't. It hadn't, Judge. I just threw out the number just to give the court the difference in the number of times and the number of man-hours it will take to try the case once or twice.

MCAFEE: Well, when you say twice, who is involved in each case?

UNIDENTIFIED PROSECUTOR: Obviously, the two who have requested severance here.

MCAFEE: All right. Because up to this point, I thought the state's position was all 19 need to go on October 23rd.

UNIDENTIFIED PROSECUTOR: It is. It is. And that continues to be our position.

MCAFEE: OK. And just to clarify that and flush that out a little bit, you're saying that, right now, you predict that if it was just a trial of Ms. Powell and Mr. Chesebro that the state's going to need those same amount of witnesses, those same amount of exhibits and that same amount of time?

UNIDENTIFIED PROSECUTOR: Absolutely.

MCAFEE: OK.

RAFFERTY: Judge, for my portion, I do have a PowerPoint. How does the court prefer that I do that?

MCAFEE: Well, I think we'd have to get you on the Zoom call so you can share a screen.

Do you have a link for that?

UNIDENTIFIED PROSECUTOR: I do not, Judge, but --

MCAFEE: All right. Let's see if we can email you that.

RAFFERTY: Does the government have a paper copy of the PowerPoint they can share with counsel?

UNIDENTIFIED PROSECUTOR: Yes. Yes. While I'm waiting on that email --

[13:39:59]

Judge, I'm not seeing an email come through.

KAITLYN COLLINS, CNN HOST: And we're watching now as prosecutors in the Fulton County district attorney's office are making their arguments in the first televised hearing that we are seeing in Georgia today.

This is related specifically to two co-defendants, Kenneth Chesebro and Sidney Powell. We're waiting to hear more from the prosecutors.

But, Elie Honig, as you're listening to what Kenneth Chesebro's attorneys are arguing and Sidney Powell's attorneys are arguing for why their cases should be tried separately, known as severing it, what do you make of what Chesebro's attorney was arguing, kind of downplaying his arguments?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, what he is arguing here, Chesebro and Powell, both separately, is this is a sprawling indictment spanning really what they argue is three different conspiracies and each of our clients is involved in a relatively small piece of it.

Essentially, what they're arguing is, if this was all a movie, the two people here, Chesebro and Powell, will never be in the same scene of that movie.

Yes, they're in the same cast. Yes, they're in the same movie. But they'll never appear together in the telling of this case. And therefore, they're saying we ought to be tried separately in the interests of fairness.

COLLINS: And, Karen, the most significant thing that we heard just there at the end, after Chesebro's attorney and Powell's attorneys had made their arguments was, what we heard from the district attorney's office on how long this could potentially take.

They were saying four months excluding jury selection, having 150 witnesses. What do you make of that?

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: So really what they're saying is the defendants themselves are looking at just the individuals' specific acts that they did and that's what they're arguing. What the D.A. is saying is, no, this was a big case that everyone

shared the same purpose, which was we don't accept that Trump lost the election and we're all going to work together, each doing our separate parts, to try and illegally steal the election for Trump.

And so, yes, they might have done separate parts of that, but there was a common purpose, common scheme, common plan.

And so the government will argue that's why they get to prove their whole case, that this was just different people's jobs in the whole -- in the whole purpose -- like a bank robbery, one guy's the getaway driver, the other guy rented the car.

Maybe they didn't ever meet each other but they all had the purpose of robbing that same bank.

So that's what the government here is going to do. They're going to say we get to prove our whole case, not just that she went into Coffee County and broke in and stole voter data because that's taking it out of context.

The whole purpose of why she did what she did, Sidney Powell, and why Ken Chesebro did what he did, was for this greater purpose on behalf of Donald Trump.

COLLINS: We have former U.S. attorney from The State of Georgia Michael Moore also here with us.

Michael, when you heard that argument from the district attorney's office telling the judge, Scott McAfee, here that they still believe it would take the same amount of time, even if they are successful in what they're arguing tailed, Kenneth Chesebro and Sidney Powell severing their cases from the broader case, what did you make of that?

MICHAEL MOORE, CNN LEGAL ANALYST: Well, I'm glad to be with you.

I think they basically conceded that they would not try this case in October. There's no way that you're going to tell a judge it's going to take us four months and put on more than 150 witnesses in a case but we only want to give the defendants less than two months to prepare. That's just not going to happen.

So I think it was almost a concession. I think they did try to use the number to scare the judge into thinking he might end up with three trials instead of two. So I think they miss aid chance to make their case.

At the same time, I think the defendants also could have been more descriptive about why evidence against Mr. Chesebro would not be admissible against Ms. Powell and back and forth, and how that could be prejudicial at least and could affect their case. So I think they could have built out the record a little bit on that.

But it sounds to me like there will be two defendants likely going to trial by the end of October and 17 defendants will be sometime later. Remember, the four months didn't even include jury selection. And

we're in a RICO case here in Atlanta now where they've been picking a jury in a RICO matter involving a gang for over eight months.

And so when you talk about a year in trial, I think the judge -- there's no way he's going to push all these defendants to go by the end of October.

COLLINS: All right. Michael, stand by.

We are now hearing from the prosecutors again in the courtroom. I want to go back to the courtroom.

WILL WOOTEN, FULTON COUNTY PROSECUTOR: -- such defendants may be tried jointly or separately in the discretion of the trial court. And our case law, relying on Collins vs. The State, 312 Georgia 727.

Three factors to consider are the likelihood of confusion of the evidence and law, the possibility that evidence against one defendant may be considered against the other defendants in the presence or absence of antagonistic defenses.

And I guess the position of the other side is that neither is saying that there is an issue, that there doesn't seem to be any antagonistic defense.

Of course, neither the mere presence of an antagonistic defense or the possibility that a separate trial would give a defendant better a chance of acquittal is sufficient to sever.

[13:45:04]

Defendant bears a burden of showing that a joint trial would be so prejudicial as to amount to a denial of his or her right to due process.

So I want to talk about what's not a proper ground for severance first.

And this is coming from Mr. Chesebro's motion to sever. He says, "In sum, there has never been any direct contact or communication between Mr. Chesebro and Ms. Powell. Similarly, there is no connection or overlap between the overt acts or the substantive charges associated with Mr. Chesebro and Ms. Powell."

That is not a defense and that is not a ground for severance.

Similarly, Ms. Powell's motion says that, "Ms. Powell can receive a fair trial only if she's tried alone, the prejudice that would inure to her from a lengthy trial with any of those she was not involved with and about the vast number of events she had no knowledge of or connection with would deny her due process."

Again, not a defense, not a ground for severance.

Turning to case law, Lowry vs. The State, 347 Georgia App 26A, 2018 case, "Nothing in Georgia's RICO provisions requires that Lowry," the defendant in that case, "had participated in or even been aware of all the alleged acts of racketeering activity committed in connection with the common enterprise."

Thompson vs. The State, also Georgia Court of Appeals. "None of the provisions of the Georgia RICO Act requires that each defendant in an enterprise have full knowledge of all facets and elements of the enterprise and all of its members or actors."

And likewise, the federal courts agree. This is an 11th Circuit case, 1996, United States vs. Castro.

"In proving the existence of a single RICO conspiracy, the government does not need to prove that each conspirator agreed with every other conspirator, knew of his fellow conspirators, was aware of all of the details of the conspiracy or contemplated participating in the same related crime."

And so we've heard a lot from both sides -- both defendants about they didn't know the other people, they were located thousands of miles apart, they didn't even know that the other parts of the conspiracy were going on. The case law is clear that that does not matter.

Of course, anytime a person enters into a conspiracy, they are liable for all of the acts of all of their co-conspirators. And that's it. Evidence against one is evidence against all.

And as Mr. Wade noted to the court, the state's position is that, whether we have one trial or 19 trials, the evidence is exactly the same. The number of witnesses is the same. And so many of the arguments that are made on the other side evaporate.

I want to look at the cases that were cited by Mr. Chesebro in his motion.

Griffin vs. The State. That's a case where severance was properly denied. It is not a RICO case.

Brown vs. The State. Another case where severance was properly denied. Not a RICO case.

Baker vs. The State. Severance was properly denied. Not a RICO case.

Padgett. Severance was properly denied. It's not a RICO case.

Jones vs. The State. Severance was properly denied. Also not a RICO case.

Zafiro vs. United States, federal case, again, severance was properly denied. That was not a RICO case.

Henderson, which we just received just now, that was also not a RICO case. Severance was properly denied.

Mr. Chesebro points to a couple of cases in his motion where a conviction was reversed on appeal. And as the court pointed out, in those cases, what the appellate

courts found was that, at trial, the evidence against one defendant was minimal, almost nothing compared to the evidence against the co- defendants.

And so it was just fundamentally unfair that there was all this evidence that applied to one, very little that applied to the other, and the jury may have been confused.

Looking at defendant Powell's list. And most of these are the same so I'll click through them.

Again, same cases. Most of them severance properly denied. None of them a RICO case.

And the ones where a conviction was overturned on appeal, again, it came down to insufficient evidence at trial. The evidence against the defendant named was just so minimal compared to the evidence that was pertinent to the other defendants charged.

And of course, conspiracy cases and more specifically RICO conspiracy cases are different. And that's why we point out that all of those cases relied on by the other side are not RICO cases.

And so the analysis is different. The facts are different and the law is different.

Looking to our Georgia courts, Pasha vs. The State, 273 Georgia App 788, 2005 case. "Each actor in a conspiracy is responsible for the overt actions undertaken by all of the other co-conspirators in furtherance of the conspiracy."

[13:50:03]

Willingham vs. The State. Georgia Supreme Court case, 1995. "Where there's sufficient evidence of a common scheme or plan to commit a criminal offense joinder is authorized."

And our federal courts kind of take both of these concepts in the United States vs. Caprarelli, 806F 2nd 1487, an 11th Circuit case here in Atlanta, 1986.

"Joinder of co-defendants and account charging a single RICO conspiracy violation is permissible, even if different defendants are charged with different acts of racketeering, if they're in furtherance of the overarching RICO conspiracy charge."

In our case, the state's theory of the case and as laid out in the indictment, each and every one of those 161 overt acts charged and all of the offenses charged from count one to count 41, were in furtherance with the RICO conspiracy, which was to unlawfully affect the outcome of the 2020 election in The State of Georgia. Every single one.

I understand the other side's argument that my client is over here in Coffee County. My client is over here in Wisconsin or wherever sending off emails.

But the problem for them is that it doesn't matter because it's all part of the same overarching RICO conspiracy.

And the state's theory of the case as alleged in the indictment is that, as this enterprise operated in multiple states and operated quite a lot in Fulton County -- that's why we had this case in Fulton County -- the conspiracy evolved.

One thing didn't work, so we move on the next thing. That thing didn't work, so we moved on to the next thing. That thing didn't work, so we moved on to the next thing.

And that was going on from the first overt act to the last overt act. All part of that same overarching RICO conspiracy.

Turning back to the factor that is the court needs to look at -- and I'm going to talk about factors one of two -- the likelihood of confusion in evidence in the law and the possibility that evidence may be considered against the other defendant, which they agree is not an issue here.

But one and two, because this is a RICO conspiracy case and because the evidence against one is admissible against all, one and two evaporate.

There's no likelihood of confusion about which evidence applies to which defendant or which law applies to which defendant when all of them are alleged to have engaged in the same conspiracy.

And it's significant that in count one of the indictment, the RICO count, the allegations set in counts two through 41 are all included in that count one.

And so while Mr. Chesebro may have never been to Coffee County, the evidence about Coffee County is evidence that the enterprise was interested and shows that the enterprise was working.

And because it's a conspiracy case, Mr. Chesebro is liable for what happened there and it's admissible evidence.

Again, going back to our federal courts, since any evidentiary spillover and the court asked about this issue, "Where the evidence and all events would have been admissible against the movement and the context of the conspiracy severance will rarely, if ever, be required."

This is a First Circuit Cout of Appeals case and we submit that it's pervasive authority here.

Again, turning to another example. United States vs. Diaz, a Second Circuit case from 1999, and a federal RICO conspiracy in the Second Circuit involving the Latin Kings.

"Even when a defendant was implicated in only one of nine separate murders carried out at part of a pattern of racketeering activity, a joint trial was proper because all of the evidence was admissible against each and every one of the defendants."

It showed multiple things. It's not just that they committed an act but to show the existence and nature of the RICO enterprise and to show a part of the racketeering activity on the part of each of the RICO defendants as well as his or her relationship with the enterprise itself.

And I just love this quote because I think it sums it up. Again, it's an Eighth Circuit Court of Appeals decision, "Persuasive authority." There in the United States vs. Keho, Eighth Circuit. It said, "It will be the rare case, if ever, if ever, where a trial court should severe the trial of alleged co-conspirators."

The other side pointed a little bit to this. I did want to mention it.

That any potential jury confusion can be addressed by other means, means other than severance. Such as an instruction to the jury to separately consider the evidence as to each defendant.

Now again, the state's position, because this is a conspiracy case, because it's a RICO conspiracy case, that all of the evidence is admissible against all the defendants.

But even if that, you know -- even if there were some issue to be extra cautious, the court could give a limiting instruction.

[13:54:58]

And the state's position is that it would not be limiting instruction after limiting instruction after limiting instruction after limiting instruction because, again, all the evidence is admissible against all the defendants.

Also the defendants ignore, completely ignore a long line of cases in Georgia that affirm the denial of severance for Georgia RICO Act violations, all decided under these same principles that I just talked about.

First, Chancy vs. The State, Georgia Supreme Court, 256 Georgia 215, a 1986 decision, Evans vs. The State --

(CROSSTALK)

MCAFEE: I think we got the cites here.

(CROSSTALK)

WOOTEN: OK.

MCAFEE: -- later.

WOOTEN: Sure. And those are provided to counsel.

And, Your Honor, I have copies as well for you.

So these defendants cannot satisfy the first two prongs, likely to lead to confusion in the law, evidence against one may be considered against the other. Because that's allowable. That's exactly what a RICO conspiracy case is allowed to do.

I don't think I need to talk too much about the third prong because of the statements of the other side.

Just would hit that defendant has to show that a joint trial, as it relates to the third prong, would have to amount to some sort of denial of a due process right. We don't believe that's the case here.

Palmer vs. The State -- just to point out a few Georgia Supreme Court cases -- where Palmer highlighted certain situations where there was an antagonistic defense. We won't get into those because of where we're at.

The bottom line there, it has to be prejudicial as to the -- as to amount to a denial to his or her right of due process.

I also want to talk about public policy. Public policy -- and our courts have hit on this issue -- strongly disfavors severance in complex conspiracy cases.

For several reasons. One is judicial economy. There's been arguments on the other side that somehow severing any of these defendants out would be more economical. I'm not quite sure how that works.

I think one four-month trial is shorter than multiple four-month trials. Same witnesses, same evidence.

Minimizing the inconvenience and trauma on victims and witnesses. And I want to remind the court that part of this RICO conspiracy involves victims.

There are victims in this case that were targeted by members of the enterprise and their lives were turned upside down.

And that's an important part of this case and having those people come and testify multiple times, over and over, would both inconvenience but, more importantly, traumatize them.

Consistency of the verdicts. I've got a little bit of case law that talks about that.

Efficient use of state resources and fundamental fairness. Justice Scalia astutely observed:

"It would impair both the efficiency of the criminal justice system to require, in all of these cases of joint crimes, where incriminating statements exist, that prosecutors bring separate proceedings presenting the same evidence again and again,

"Requiring victims and witnesses to repeat the inconvenience and sometimes trauma of testifying and randomly favoring the last tried defendant who is have the advantage of knowing the prosecution's case beforehand." He goes on to say, "Joint trials serve the interest of justice by

avoiding instant verdicts and enabling assessment of relative culpability."

And he points out that these sometimes advantages that operate to a defendant's advantage.

"So even apart," he says, "from these tactical considerations, joint trials generally serve the interest of justice by avoiding the scandal and inequity of inconsistent verdicts."

Our Georgia courts agreed. They agree that economic use of resources is an important and legitimate concern.

Montgomery vs. The State, 156 Georgia App 448, a 1980 case:

"In a case where the same witnesses, the same evidence, and the same charges would be used against all defendants best affecting judicial economy and the use of physical facilities, time of witnesses, jurors and court personnel, the trial court must consider these efficiencies against the possible conflicting interests of joint or multiple defendants."

And the 11th Circuit agrees. United States vs. Brown, 2007 decision, 505F 3rd 1229. "We find considerations of judicial economy to weigh heavily against severance in light of the substantial systemic interest in handling this complex conspiracy case in one trial."

And in that case, it was a two-month trial.

[13:59:43]

The state, as we represented to you, Judge, believes this would be at least a four-month trial.

[13:59:49]

So defendants, it's the state's position, have not met their burdens as set forth in Collins. The case presents no likelihood of confusion of the evidence or law applicable to any defendant because all of the evidence is applicable to all of the defendants. All of the law is applicable to all of the defendants.