Trump Co-Defendant Just Cannot Get Unstuck From Sidney Powell

Attorney Kenneth Chesebro, the alleged architect of the so-called fake elector scheme launched in a frenzied attempt to keep former President Donald Trump in office, just can’t get away from Sidney Powell.

After ruling last week that the two will be tried together, Fulton County Supreme Court Judge Scott McAfee on Thursday further ruled that their trial will be conducted apart from Trump and 16 other co-defendants in the sprawling racketeering prosecution brought by District Attorney Fani Willis over attempts to subvert the state’s 2020 presidential election returns.

“After considering the parties’ filings and without the need for a hearing, the Court further finds that severing the remaining 17 co-defendants is simply a procedural and logistical inevitability,” McAfee wrote in his order, while leaving the door open for further adjustments.

“Additional divisions of these 17 defendants may well be required,” he wrote. “That is a decision for another day once the many anticipated pretrial motions have been resolved and a realistic trial date approaches.”

The two became intertwined after Chesebro filed a motion in August, invoking his constitutional right to a speedy trial. Powell followed with her own speedy trial demand a day later, and Willis happily obliged, setting a trial date of Oct. 23. If Chesebro was trying to call Willis’ bluff, it may not have worked, according to defense attorney Peter Pullano.

“When you show up at an arraignment, the prosecution knows exactly what their case is,” he told The Daily Beast. “And the defense doesn't necessarily know yet. And so whatever defense posturing [happens early on], the defense investigation is probably at an earlier stage than where the prosecution is.”

Thursday’s ruling is not necessarily a win for Willis, who would have preferred to try all 19 defendants as one. However, it is a clear loss for Chesebro, who wanted desperately to separate himself from Powell, who has come to represent the fringiest of fringe elements associated with right-wing politics.

Chesebro, whose former law school classmates say they cannot fathom how the once-respected litigator came to be wrapped up with the former president, tried and failed earlier this month to sever his case from Powell’s, whose far-out theories about nonexistent vote theft have been the subject of widespread mockery.

“Mr. Chesebro has never physically met Sidney Powell; Mr. Chesebro has never sent an email to Ms. Powell; Mr. Chesebro has never received an email from Ms. Powell; Mr. Chesebro has never called Ms. Powell; Mr. Chesebro has never received a phone call from Ms. Powell; Mr. Chesebro has never texted Ms. Powell; Mr. Chesebro has never received a text message from Ms. Powell; and Mr. Chesebro has never communicated with Ms. Powell through any social media or telecommunications application,” Chesebro's motion stated. “In sum, there has never been any direct contact or communication between Mr. Chesebro and Ms. Powell. Similarly, there is no correlation or overlap between the overt acts or the substantive charges associated with Mr. Chesebro and Ms. Powell.”

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Powell, who in 2021 vowed to “release the Kraken,” legally speaking, and reinstall a defeated Trump in the Oval Office, said much the same.

“My client doesn’t know Mr. Chesebro, has never met him, has never really spoken with him,” her lawyer insisted in court. “There’s no emails, or documents, or anything else [between them]. What he’s accused of has absolutely nothing to do with Ms. Powell at all.”

In his Thursday order, McAfee acknowledged that Chesebro and Powell “presented similar arguments,” with both insisting they had been “separately charged as distant spokes on an allegedly vast conspiratorial wheel.” And even though both claimed they would not engage in antagonistic defenses—that is, casting blame on each other at trial—McAfee declared on Thursday that Chesebro and Powell’s arguments in fact “cut against severance.”

“By emphasizing that they have been charged for ‘different, albeit related, crimes, and [that] the evidence against them for those crimes was distinct, such that it is not likely that [Powell would be] convicted solely due to her association with [Chesebro],’ Defendants have reduced any concern for ‘spillover’ evidence or juror confusion,” he wrote in his order.

Still, juries are made up of human beings, and people are unpredictable. As Pullano said, “In a multiple defendant trial, you will very frequently find that the defendants end up, at least to some degree, pointing fingers at each other.”

A defense lawyer is out to do the best possible job for their client, and being zealous on their behalf may mean damaging others.

“Because you’re not there to help them, you’re there to help your client,” Pullano said. “And so, prosecutors know how to take advantage of that.”

The potential blending of evidence cited by McAfee on Thursday is a real concern, according to Pullano, and while efforts to mitigate it are certainly worthy, life doesn’t always play along. There may be “a small amount of evidence against my client, but truckloads against the bigger players in the conspiracy,” he said. “There’s going to be a spillover effect.”

This also applies to the 16 co-defendants being tried, at least as of now, alongside Trump and other central players in the alleged conspiracy, according to former federal prosecutor Neama Rahmani.

“You don’t want to be tried with someone who’s more culpable,” Rahmani told The Daily Beast. “A lot of evidence will come out against Trump that may not be relevant to all the other defendants, but as far as jurors can compartmentalize, they might just convict lesser defendants because of [the totality of] all the evidence that has come out.”

McAfee’s ruling also referenced the prosecution’s argument that each of the defendants were part of one overarching conspiracy, and that “each of the acts and statements of each of the participants in the criminal enterprise is the same.” Yet, by allowing Chesebro and Powell to be tried first next month—Willis has proposed a Mar. 4, 2024 trial date for the other 17 co-defendants, which has not yet been finalized—Trump and the other subsequent defendants will get a “roadmap of the prosecution’s case,” according to Richard Serafini, who worked under then-Assistant AG Robert Mueller, among others, as a senior trial attorney in the Justice Department’s criminal division.

Serafini told The Daily Beast that later defendants will also be privy to important witness testimony in the initial trial, which will give their lawyers “all this information for potential cross-examination purposes.”

“So, prosecutors would prefer to only do one trial,” he said.

In arguing against severing Chesebro and Powell’s cases from the others, prosecutors said trying all 19 defendants would be more efficient, which McAfee rejected in his order on Thursday. However, 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,” McAfee wrote, further noting that relocating to a larger venue “raises security concerns that cannot be rapidly addressed.”

Prosecutors have said they expect to spend four months at trial, not including jury selection.