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First Televised Hearing In Trump GA Case; Judge Denies Chesebro's Motion To Sever Case From Powell's. Aired 2-2:30p ET

Aired September 06, 2023 - 14:00   ET

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

[14:00:50]

WILL WOOLEN, FULTON COUNTY PROSECUTOR: All of the law is applicable to all of the defendants. And two, evidence against any defendant may properly be considered against each of the defendants in a RICO conspiracy case so there's no risk of this spillover effect. Just to mention three, again they can see that that's not an issue here. That's all I have judge unless you have any questions.

SCOTT MCAFEE, FULTON COUNTY JUDGE: So, these again the three factors those are just would you agree that those aren't exclusive?

WOOTEN: Yes, your honour, absolutely.

MCAFEE: So, we're really supposed to take into fact and consideration the circumstances of the entire case and anything that just might be present in this case. It may not be in others, right?

WOOTEN: Yes, your honour.

MCAFEE: So, I guess some of the things I think we need to think through to me also -- is more this position that we still need to have all 19 people at the table 47 days from now. And maybe this is something if you need to tag team in with somebody else on the council. One of the first things I kind of want to talk through is -- is potentially how removal affects this. So, I know your state is currently litigating this issue with -- with multiple co-defendants in federal court. And while that's happening until it's a decision is made a -- we can't issue a judgment of conviction here, right?

WOOTEN: Yes judge.

MCAFEE: Now no matter how Judge Jones rules isn't either party gonna have the right to appeal that ruling?

WOOTEN: That is correct judge. Our position is that both parties -- both sides would have the right to appeal.

MCAFEE: And so, the 11th Circuit could take any idea of how long to weigh in?

WOOTEN: As long as they need to.

MCAFEE: Right so it could potentially even optimistically be a six- month turnaround just for the 11th Circuit to come up with a decision, right?

WOOTEN: Yes sir.

MCAFEE: So, if it's a four-month trial that starts in October we're potentially sitting at a point where we've presented the entire state's case maybe even the jury has returned a verdict, but we can't enter that judgment of conviction until the 11th Circuit comes to a decision? Is that kind of the scenario we're --we're playing out here?

WOOTEN: Um Judge, I think -

MCAFEE: Excuse me, can I have a moment Judge?

WOOTEN: Your honour -

MCAFEE: And by the way let me add I know this wasn't something that I highlighted so if this is something we need to submit for you know post hearing briefing we can do that, but this is something that I think is a consideration we ought to be taking into mind.

WOOTEN: Sure, and that may be the best route judge. Our kind of position on that is it depends on what the scope of Judge Jones's order is. If he takes the position that he removes everyone or that he just removes those who may have you know some entitlement to removal, the law is a little unclear on how that works in a criminal case.

MCAFEE: You can see what happened. No matter how he rules let's say he says that some aspects of the case stay behind with us here in Fulton County and the 11th Circuit changes their mind and reverses that entirely and says no the entire case has to get removed to federal court. Where does that leave us in the middle of a jury trial? Is double jeopardy attached? Have you now risked your entire prosecution because this case has now been removed to federal court and we've sworn in a jury and it's been presenting evidence against all these other co-defendants?

WOOTEN: Judge again I think for that very complex kind of fine-tuned details we may need the opportunity to brief those issues.

MCAFEE: It's not easy and we've got again less than two months to figure this out so I think to kind of charge ahead without coming to some thoughts on this very soon might be risky. So, and then the other issue here is even if even if we say that the three prongs aren't met again -- just dealing with the logistical issues the state's case may take four months but voir dire with 19 defence attorneys is going to be a different animal than voir dire with two. So, I don't think saying they're both going to equally be four months no matter how many defendants are involved would completely -- would be completely accurate is that fair?

WOOTEN: In terms of who can object?

MCAFEE: Any particular question that's asked, the sidebars that are requested, just the sheer physical limitations if one attorney gets sick. Is it really so can we so competently say that each trial is going to be exactly four months no matter who's involved? WOOTEN: I don't think we can say exactly but I think it kind of cuts

both ways judge because if we had for example 19 you know 19 people tried at one time you have a witness up and let's say they're subject to 19 cross examinations of course each of those 19 is not going to be the same full-length cross-examination. So you would have kind of a shorter, if you took them all together, you might have a shorter time for that witness on the stand with 19 people, versus if you have 19 trials of one person. And I'm going to the extremes, just to demonstrate the point. If you have 19 trials with one defendant each, then each of -- those witnesses would be fully cross-examined 19 times. So, there's a give and a take. Some things might take longer, some things would be quicker.

[14:05:54]

MCAFEE: So, the other things to think in mind is this is going to be a case with a lot of pretrial motions. And again, I don't know how many hearings we're going to need to have to sort through all those. But if we compress our timeline to 40 something days, our ability to even be able to really weigh those and think through these issues. Again, it just seems a bit unrealistic to think that we can handle all 19 and 40 something days.

That's my initial reaction, thinking of -- just how to get this -- and are we even delaying the inevitable? If we say there's no severance, aren't we going to have 17 defence attorneys get up here and file motions for a continuous just saying they're not ready? I think we've already had some counsel indicating they're on trial in other cases in federal court. And if we're just going to be sitting in a position where we're having to consider a continuance motion in 40 days, why delay the inevitable?

WOOTEN: Sure, Judge. State's position on that is that we're here on two defendants. And so, at this juncture, other defendants have filed their motions for severance, and they may raise those issues. And it would be appropriate for the court to consider all of these issues in making its decision. But for today's purposes, we're here on two defendants. And the issue is do we pull these two defendants out? Not do we pull defendant 13 out or whatever the case may be. So, the state's position is until those are raised by those parties, once we have hearings on those, that they shouldn't affect the court's decision as it relates to these two defendants.

MCAFEE: Okay, so at a minimum, I think what I'm hearing here is that it might be appropriate at this time to consider whether Mr. Chesebro and Ms. Powell proceed alone together?

WOOTEN: Whether they have provided the court and met their burden to show that they should come out. Not that the other 17 should come out, but they should come out of the pot is the state's position.

MCAFEE: Okay. All right.

UNKNOWN: Can I remain?

MCAFEE: Sure. I have like two minutes to respond. Sure, last word from the defence since it's your motion.

SCOTT GRUBMAN, ATTORNEY: So, judge, I will take this down. Your Honor, I'm not trying to oversimplify this because it is a complicated case both factually and procedurally. However, as to the 19, Your Honor, theres not gonna be --there can't be a trial of 19 people. And it has nothing to do with the length of time. It has to do with the fact that two defendants exercise their statutory right to a speedy trial and 17 other defendants, many of whom's lawyers are here, didn't. And that's our right to do and that's their right to do. So, with all due respect, Your Honor, I don't even know that there's truly a reason to spend much time, of course, I can answer any questions, but really much time talking about 19.

So really, I think the question here today to wrap up is whether it's a trial of state versus Powell and Chesebro or two trials. One state v. Chesebro, one state v. Powell. All of the cases, and we would like an opportunity since there will be some post hearing briefing to read those cases the court, state cited, and maybe respond to them. I looked at one. It's the one that says, where there is sufficient evidence of a common scheme or plan to commit a criminal offense, Joinder is authorized.

Willingham v. State. Joinder is authorized. That doesn't mean that severance is inappropriate. Those are not the same thing. Just because Joinder is authorized does not mean the court shouldn't sever. Let me be clear about something, Your Honor. The state wants this case, and I think it's absolutely clear in the pleadings. The state wants a case against Donald Trump and all these people together. The state wants to make this case about Donald Trump. Donald Trump is one of 19 defendants.

Ken Chesebro is another one. Ken Chesebro is not a politician. Before six, seven, months ago, he was probably unknown to 99.9999% of the population. You get all those nines? And so now to force him to sit here in a trial where there's evidence of all these other things is just not fair, and I'm sorry, Your Honor. You know, they have a slide here. RICO is different.

[14:10:16]

Sure, it's different. I acknowledge that in my opening but what this slide does not say is that Rico overrides the rules governing fundamental fairness constitutional and statutory protection that are designed to protect defendants. This Willingham case and upon information and belief I believe most of the other cases cited by the government are cases like murder the Willingham case is a murder case. It's a murder conspiracy case.

Certainly, the state understands the difference between three and four people being charged with one single conspiracy versus 19 people being charged with three or four different conspiracies and your honor If the court were to take the state's arguments at face value there would almost never, if ever, be a Rico case that can ever be severed. And think about what that means It means that the state of Georgia and the various district attorneys throughout the state can use the Rico statute. Can take three, four, five, six, seven different conspiracies and at their sole discretion with no oversight by any court, say that they're one bring them in one indictment, and then we're all stuck together.

And quite frankly your honour, let's compare and contrast this to the YSL case going down Going down a few. I don't know if it's floors down or up. I think down that YSL case I don't know much about it, but I know enough. I've watched a TV listen to podcasts It's a common conspiracy yeah, there were different overt acts being done towards the same conspiracy and therefore the state can try them together, but it's one conspiracy. And that's where I think if you read that Willingham case where there is sufficient evidence of a common scheme or plan?

How, your honour, is the plan down in coffee (ph) County, if it's a plan, the alleged plan, have any commonality other than electing Donald Trump your honour. Half of the United States took some act towards electing Donald Trump. If that were the only thing that mattered in terms of connecting all these as a common conspiracy There would be no rules of due process and the last thing I'll say, your honour, is I will go back to what we said at the beginning I think it's perfectly clear here that this trial does not have to last four months. Because what the state is assuming is that let's say your honour grants our severance motion and allows us to try our case just Chesborough and then Powell Separately. Well, they're saying well, it's all going to be the same evidence. Not necessarily. Obviously, the time hasn't come to file motions in limine. But we will obviously file motions in limine regarding the immiscibility of certain evidence certain extrinsic evidence of other acts that we don't think are relevant and we have the other motion to sever the counts. And no one motion, I don't think your honour should be.

They all obviously I know the court has to rule on all of them independently But I would argue judge that you should consider them jointly in terms of figuring out the big picture here, which is it is within the courts control?

MCAFEE: So well let me let me clarify something because I think the argument of the motion to sever the counts really wasn't so much as Ruling on -

GRUBMAN: Yes, your honour.

MCAFEE: -- you're on limiting the evidence just as a logistical, here's the indictment we're going to hand the jury.

GRUBMAN: And I meant altogether so if you combine, let's say your honour was to grant that it would be a significantly pared-down indictment. Then assuming that we're gonna file motions in limine, that kind of track the same type of arguments, right? The things that I know your honour is not gonna rule on this until we follow it, but you might expect that if your your honor grants a motion that says all right these 50 things in the indictment don't get read to the jury. It's probably a pretty good chance either way that we're also going to file a motion motions in limine To say that evidence of those things that have nothing to do with mr.. Chesebro also can't come in. Your honour, the bottom line is the state cannot be allowed to call something Rico and the rules are out the window it can't it wasn't what the General Assembly attended It wasn't it's not consistent Which has basic principles of due process and fundamental fairness with that your honour unless the court has any questions. We appreciate it, and I reserve the remainder of my time to the extent there is any.

[14:15:20]

MCAFEE: Mr Rafferty.

BRIAN RAFFERTY, ATTORNEY: We've beaten the dead horse as it relates to your discretion about granting a severance between Mr. Chesebro and Miss Powell, but the first point I made I think remains and that is Miss Powell has filed a demand for a speedy trial much in the same way as Mr. Chesebro many of the defendants as counsel is indicated in the courtroom here today. Their lawyers have filed motions to sever and I don't think any of the case law or anything that the government has cited here today trump's my clients right to a speedy trial.

She has asked for a speedy trial. She filed it timely just like Mr Chesebro therefore, I think at a minimum her case is severed from the remaining 17. It must be severed because none of the cases that the government cited point to the idea that all of those considerations trump the statutory rights of my client to a speedy trial. So, you know we can see what post briefing comes in about severing Mr. Chesebro from Miss Powell, but I don't think there's any dispute at this point that Miss Powell and Mr Chesebro are severed from the remaining 17 based on our demands for speedy trial.

MCAFEE: All right, thank you, Mr. Rafferty.

WOOTEN: You honour, just briefly just for the purpose of the record, I want to make clear that there is a dispute about severing the 2 from the 17. I think the state's made that clear, so I just want to make sure that that's cleared up for the record. (inaudible) And just before we depart, we would just ask for, if there is a briefing, for that briefing schedule.

MCAFEE: Of course, no, I think we still have plenty to talk about before we wrap up for the day. So, obviously I think has been made clear. We're on an expedited timeline with these statutory speedy trial demands and we are certainly here ready and willing to provide Both defendants that right and we need we plan to make that October 23rd trial date stick. With that in mind I don't know if we're always gonna be able to have the luxury of pre-hearing briefing and post hearing briefing and some of these issues may require a little more exploration than others this one.

I don't think is one of those. When it comes to the question of whether to sever Miss Powell and Mr. Chesebro, I certainly agree that there are always guardrails and that Rico as indicted can't just be used to do anything. But it is broadly construed, and we do those guardrails are found in those three factors and the three factors traditionally that we've gone through I really don't see them to be at play here. We don't for for one the antagonistic defence Issue is conceded Both parties are gonna be claiming. They have no idea who the other is and won't be pointing the fingers at each other I think the argument that they're charged in two separate kind of silos of charges strengthens the idea that there won't be confusion amongst the jurors and there won't be spillover evidence. So really the-- the strongest thing that I'm hearing I don't think it's invalid is that it's gonna be kind of a matter of inconvenience and potential added expense to have both defendants sit together. And that's certainly true, but there's also other Judicial economy aspects to consider and issues of inconvenience as well. We talked about the jurors. I don't think it's --it's we can take for granted that these would both be two equally four month-long trials. I think it could easily be twice that with multiple defendants and I think we need to take into account the fact that one docket goes entirely on hold while this case is going. And instead of it being if we're purely considering aspects of judicial economy, which to me was the really the only valid argument here, I think taking up two dockets and for a period of four months also weighs into that as well as the void of your process and the inconvenience to the jurors.

So, based on what's been presented today, I'm not finding the severance from Mr. Chesebro or Powell is necessary to achieve a fair determination of the guilt or innocence for either defendant in this case and so I'll deny Mr. Chesebro's motions to sever from Miss Powell. I'll deny in part Miss Powell's motion to sever from Mr. Chesebro. And the plan will be to enter a scheduling order for Miss Powell mirroring that Mr. Chesebro with the October 23rd date holding It sounds like the state is still sticking to the position that all these defendants should remain and they want to address some of these removal issues. I'll I'm willing to hear that I remain very skeptical but we can -- I'm willing to hear what you had to say on it. And so, but again because we're on a limited time frame I don't think we had the luxury of waiting. So, how long do you think the state needs to respond to that issue?

[14:20:19]

AROURA:Two weeks, Judge?

MCAFEE: I don't think we can do that. We need, there's gonna be motions deadlines for the other defendants, and we need to get scheduling orders entered.

AROURA: I had to ask.

MCAFEE: That's fine. And I had to deny.

(LAUGHTER)

AROURA: Understood, understood. Ten days?

MCAFEE: Well, I think the ten-day mark from today. I know, again, I'm sending the indicator that folks are gonna have more than ten days to file their standard post arraignment motions. Let's see if we can have that by Tuesday of next week.

Again, this is limited to how you think logistically we could possibly keep these defendants together. And I think we can limit that to ten pages. And if anyone else wants to respond, they can to that issue. But Mr. Grubman?

GRUBMAN: Yes, your honor. This is, if you're still going on this issue, I did have a quick other issue just, you know, your attention to bring up. We do have a pending motion to talk to the grand jurors.

MCAFEE: Right, let me get to that. So, again, knowing that Mr. Chesebro and Ms. Powell are hurtling forward, and the motions are gonna keep coming in. I don't think it makes sense to just have these all pile up. So, we would pretty much maybe just keep having these weekly sessions together and handle them one at a time.

So, to that end, I believe we're starting another trial next week. I think it's a murder trial we're doing next week. But looking at Thursday or Friday of next week, how's everyone's availability? I only saw motions from Mr. Chesebro, so I guess the question's only directed towards Mr. Grubman and Mr. Aurora. Looking at Thursday or Friday morning.

AURORA: We're here whenever the court instructs us to be.

MCAFEE: Got it.

GRUBMAN: Your honor, could we ask for Friday morning, a good idea, like Saturday morning? We can have a conversation.

MCAFEE: On Thursday morning?

GRUBMAN: Yeah. Thursday afternoon. You know, Friday and hours is gonna be free, so I just figured we could have, depending on the motions you're submitting.

MCAFEE: Well, so far you've got, I believe it's the two related to the grand jury. And then you have one more related to the supremacy clause.

GRUBMAN: We've got two more coming here today.

MCAFEE: Maybe we limit it since the grand jury issue is something that might take more time to flush out if it's granted. Maybe we limit it to those two for next week. And we can save the constitutional arguments for another day. Can we still do that Thursday morning though? Assuming it's just those two related to the grand jury.

GRUBMAN: We start at 9 then?

MCAFEE: That's the plan. Yeah.

JOHN KEELAN (ph): I'm sorry, I'm John Keelan.

MCAFEE: Sure.

KEELAN: Thursday morning or Friday morning?

MCAFEE: Thursday morning, it sounds like everyone, and we'll do those two grand jury motions. And then Mr. Rafferty, if you want to jump on board and adopt them, we can obviously work you in. RAFFERTY: Yes, your honor, just a quick clarification. The briefing from the state by Tuesday, is that going to be on the question of whether it's going to be a trial of 19 or a trial of two?

MCAFEE: That's right.

RAFFERTY: Thank you.

GRUBMAN: Nothing else from Mr. Jethro, your honour.

MCAFEE: Okay, thank you Mr. Grubman. Anything else we should address since we're all here together?

UNKNOWN: Real quickly.

MCAFEE: Yes sir.

UNKNOWN: Some of the lawyers, some of those other defendants are in the courtroom. They may well have an interest in the issues and the arguments that the government makes about whether it's a trial of 19 or a trial of two.

So, are those other lawyers permitted to submit some kind of briefing in response to whatever the government says?

MCAFEE: I think that would be fine. I think some already have. I think folks have already been submitting severance motions saying that they're not ready, that there are conflicts. And so that might very well suffice. But certainly, I'm not going to foreclose that opportunity if they want to be heard in more detail. So, we'll send out an email --to everyone indicating as much.

UNKNOWN: And relatedly then, on Thursday morning, will we potentially have some discussion of that motion as well, that briefing?

MCAFEE: We can. Again, I think by then I'm hoping to have already ruled and issued some scheduling orders because we need to get that clarity so we can focus on what lies ahead. Anything else?

UNKNOWN: No, your honor.

MCAFEE: Okay, anything from the state?

UNKNOWN: No, Judge.

MCAFEE: All right, thank you all. See you next week.

WOLF BLITZER, CNN ANCHOR: So as a rule, relatively quickly for the Fulton County Superior Court Judge Scott McAfee to come down with some major, major decisions. We got some significant news in the course of this hearing that just wrapped up and Laura Coates is with me.

I think most significantly, we know that Kenneth Chesebro and Sidney Powell, two of the 19 defendants, wanted to separate their cases from the others. Apparently, the judge denied that, right? LAURA COATES, CNN CHIEF LEGAL ANALYST: I mean, think about judicial efficiency. We saw a ruling, a hearing all happen today, mostly because there was already briefing in advance to suggest the reasons why they wanted.

[14:25:40]

The big picture here was, look, Sidney Powell and Ken Chesebro said, we do not want the stink and the stain of the other defendants on us or on one another. We have a very discreet portion of what this allegation is. We don't want it mixed. We might spend weeks and weeks, maybe even months, having to sit through evidence. It has nothing to do with charges against us. So let us separate from everyone else and also from each other.

The judge looked at -- really three factors here. The first factor was whether there was a thing called antagonistic defences, meaning, are you two going to sit there at trial and just point at one another and say, it wasn't me, it was her, it wasn't her, it was me, or vice versa? Second thing was, how much are these siloed? How much are the charges against both people going to be so distinct that a jury was not going to be confused that, are you talking about Chesebro right now or are you talking about Sidney Powell? On those two points, the judge said, you've conceded. There's not a lot of confusion here or an issue about antagonistic defences. It was the final thing about efficiency. How many times do you have to have a jury and panelled witnesses testify to hear all of this evidence? And that was the only valid argument he actually heard that day. And for that, he said, it's not enough for me. It's not enough to actually have severed trials and you're going to have to be tried together.

Now, the real question will be going from here, is it a trial of these two people on October 23 alone? Or is the DA going to be able to have the other 17 join in? The big picture and the big elephant in the room, of course, is there's still a federal motion pending about whether at least one named Mark Meadows is going to be a part of this 19 or not. This is a very quick decision. It shows that this judge wants to have efficiency really rule the day. And at the end of it, the notion that you don't want to be associated with your co- defendant, that's out the window.

DANA BASH, CNN CHIEF POLITICAL CORRESPODENT: And if there was a bit of a hint from the judge about what he is going to do down the road next week, maybe when he decides whether or not all the defendants, including and especially the former president, will be tried together as the prosecutors want. The judge said, it is unrealistic that we can do all 19 in 47 days. I mean, that was like a, sort of to me, shouting from the rooftops. He could be persuaded to change his mind once he hears from lawyers next week. But that to me was very indicative of the way this might be going if it stays in Georgia court.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: I think that's exactly right. I mean, from the time that Sara asked the district attorney, Fannie Willis, if she was going to try everyone together and she said, yes. There were a lot of questions about exactly how would that work? How would you logistically handle all of these 19 defendants, including one who is running for the presidency again?

But this appears to be a win, an initial win for prosecutors. It'd be a lot at stake for them if Powell or Chesebro were able to sever. I mean, think of that, you have one defendant, it's one or two defendants, it's televised, you're previewing all of your evidence for all the other attorneys. Here it appears this is at least an initial win, but we'll be back in court next week with new questions. We'll see how it goes. I'm really curious to see how they explain exactly how they would do this with 19 people.

SARA MURRAY, CNN POLITICAL CORRESPONDENT: Yeah, I mean, it was interesting to watch the sort of convenience argument play out because it sort of backfired for Sidney Powell and Ken Chesebro's attorneys who were arguing it would be inconvenient essentially for their clients to have to sit there over the course of weeks or months and hear evidence that doesn't necessarily pertain to the crimes they were accused of.

And what the judge came back with is you have to consider the judicial convenience. You have to consider, you know, we are going to need to pick a jury for each of these trials. We need to think about the efficiency on the court, not just the efficiency for the defendant. And I'm sure that that is something that's going to come up as he's considering how to handle the rest of the 17.

He may not ultimately be persuaded by the district attorney's office that the other 17 should go with Ken Chesebro and with Sidney Powell and move ahead toward this October 23rd trial date, but it seems like he could potentially be convinced that a large chunk of them should move together at a later date in part because it does take a while. I mean, they're talking about a four-month trial. That's what the district attorney's team suggested they were going to do with 150 witnesses. And that does not include jury selection. And the judge pointed out it wouldn't surprise him if it took twice as long for a trial like this to play out.

COATES: And you can imagine too, I mean, again, some would say Dems the brakes. You're talking about conspiracy, right? That's the whole nature of a conspiracy charge that there's a whole group of people who have been involved in behavior that is criminal. And under Rico, the question here was whether the DA was using it as a catch-all, umbrella, you know what, let's just see if it works? As opposed to what she intends to use it for, which is I'm charging Rico intentionally because it was a criminal enterprise. In order for me to prove that for a jury, I need the members and people who were involved at the actual trial. That's going to be the real lift for her.