Rat-a-tat, on Thursday, the pace in the Fulton County racketeering indictment of Donald Trump and 18 others quickened to a sprint. The accelerating developments go beyond the taking of Trump’s fingerprints and mugshot at the Fulton County jail.
An unusually fast, televised trial for at least one defendant in the Fulton County grand jury’s indictment of Donald Trump’s alleged scheme to overturn the state’s 2020 election appears imminent. Lawyer Kenneth Chesebro, who requested a speedy trial, may soon regret it . . . as a convicted felon.
It started Wednesday afternoon. Defendant Kenneth Chesebro asked to be tried speedily, as is his right and the public’s. Chesebro is the lawyer who apparently concocted the entire “fake elector” scheme.
Under Georgia law, his request for a speedy trial means it must happen no later than November 6, 2023. On Thursday, Fulton County District Attorney Fani Willis swiftly jumped aboard his request. Her quick proposal for an October 23 start date cut 10 days off Chesebro’s potential time to prepare.
Evidently, she’s rarin’ to go.
Less than 90 minutes after Willis’s filing, Donald Trump’s lawyer objected to the early trial and gave notice that he will seek to sever, or separate, his case from that of Chesebro. Trump wants to delay.
Remarkably, within the hour, Judge Scott McAfee accepted Willis’s proposed start date. Judge McAfee captioned his order as “State of Georgia v. Chesebro,” excluding Trump and the other 17 defendants from the case’s original caption.
That signals that the order applies only to Chesebro. It also seems to be saying that he might be tried alone, though that’s not entirely clear.
Willis may make a motion to clarify that she wants to try all of the alleged criminal enterprise members together. Alternatively, she could ask to try a subset of them who are tied to the “fake elector” scheme.
Here are some reasons Chesebro likely sought a fast trial and why Willis seems to want it even more.
Chesebro would rightly view himself as less culpable than Trump, and even lawyers Rudolph Giuliani or John Eastman, who advised Trump directly.
It was easy for Chesebro and his lawyer to see that by demanding a fast trial, Trump and others would move, with good prospects of success, to sever themselves from Chesebro’s trial on the ground that they needed more time to prepare.
Figuratively speaking, Chesebro knows that mold from a big cheese, if close to a smaller slice, can taint it. He thinks it’s best to keep his distance.
A trial without Trump and others could also help Chesebro, he might calculate, by raising questions in jurors’ minds about why he was being singled out.
Then again, a prosecutor and judge can explain that jurors are to focus solely on the defendant and the evidence before them. They are not to concern themselves about criminal justice procedures with which the law does not trouble them.
Chesebro might also have thought that Fani Willis, like many prosecutors, brought the indictment without being 100% ready to try the case. Prosecutors understand that there are almost always months to do further preparation before a jury is sworn.
If that was Chesebro’s thinking, Willis quickly disabused him of the notion.
She knows that having a speedy trial of any defendant is to prosecutors’ advantage. Evidence is not like cheddar that improves with age.
She also understands that as much as she might like to try Trump and others atop the chain of command, she will not likely have that luxury. And so she should take advantage of the opportunity for a simpler trial.
The reality of a speedy trial can immediately flush out the less culpable witnesses who see an opportunity to get the best cooperation “deals.” Pleas with cooperation agreements both compress the number of defendants to try going forward and expand the prosecutors’ evidentiary arsenal against the higher-ups.
For example, the indictment alleges that defendants David Shafer, Cathleen Alston, and Shawn Still were “fake electors,” and defendant Mike Romans was the Trump campaign official alleged to have helped orchestrate the logistics of the “fake electors” scheme.
They may well have direct information or leads to share about Chesebro. Indeed, the indictment alleges that Chesebro sent emails to Shafer and Romans advising them on procedures for fake electors to follow in falsely declaring themselves official electors on December 14.
Further, a simple trial involving one or a few defendants creates the possibility of an early conviction. That can have a domino effect on other defendants who have waited to see whether to plead guilty and cooperate.
A single trial would provide Willis with multiple other advantages.
Here’s an important one. Every defendant multiplies the nine “peremptory challenges” to jurors – the defense lawyers’ tool to excuse without explanation the juror who, for example, has four relatives in law enforcement. With 19 defendants, that’s up to 171 excused jurors without any stated reason!
Teams of defense lawyers can work together using peremptory challenges until they find one or more jurors whom the counsel are convinced will hang the jury by voting to acquit no matter how overwhelming the evidence.
A single-defendant trial would also avoid the risk of a circus into which trials with many defendants can degenerate. There would not be pretrial legal motions coming from multiple sources or evidentiary objections at trial arising from multiple directions. Such repeated objections to a prosecution witness’s direct testimony can break up the narrative.
A single defendant’s trial also has only one lawyer cross-examining every such witness and poking holes in their testimony.
Ultimately, the prosecutors’ holy grail is a conviction. There, it’s evidence that rules. Willis’s apparent case against Chesebro is powerful.
Consider these four buckets of proof.
Three Chesebro Memos. On November 18, Chesebro wrote the first known legal memorandum outlining the plot. Fake elector slates were meant to provide a pretext for Vice President Mike Pence, as presiding officer of the January 6 Joint Session of Congress, to claim there was a dispute and a basis to reject or delay the certification of President Joe Biden’s electoral win.
The Georgia indictment alleges follow-up Chesebro memos on December 6 and 9 in which he elaborates on the procedures the fake electors would need to follow. Those memos were sent to alleged co-conspirators and Republican fake electors in battleground states.
Emails. According to the indictment, Chesebro sent multiple emails that “outline strategies for disrupting and delaying the joint session of Congress on January 6, 2021.” In a December 13 email to Giuliani, Chesebro allegedly wrote that his “strategies . . . were ‘preferable to letting the Electoral Act operate by its own terms.’”
A lawyer who puts in writing that he doesn’t want the law to operate as written has some explaining to do. Chesebro’s defense counsel is not likely to want him on the witness stand where he’ll be subject to cross-examination.
Witness testimony. Special Counsel Jack Smith apparently has devastating evidence, which is likely to be available to Willis, that on December 11, 2020, Chesebro suggested to an Arizona lawyer that he needed to file a Supreme Court petition challenging the state’s election as “a pretext.”
The D.C. grand jury’s August 1 indictment alleged that Chesebro told the lawyer, reportedly Jack Wilenchik, that Giuliani had heard “from a state official . . . that ‘it could appear treasonous for the AZ electors to vote on Monday if there is no pending court proceeding….’”
In addition, according to the Georgia indictment, on December 12, 2020, Chesebro met with Wisconsin Republican Party chair Brian Schimming and discussed procedures for the fake electors to meet and cast their fraudulent votes on December 14. It sounds as if Schimming will be a trial witness for the prosecution. Giuliani allegedly joined the meeting by phone.
Video. There’s nothing like a good visual. On August 18, reports emerged of video and photographs showing that Chesebro was not merely a detached legal analyst but one personally engaged in the events of January 6.
Video reportedly shows Chesebro that day in the company of conspiracy theorist Alex Jones outside the Capitol on its grounds. Visuals connecting Chesebro to the scene of the crime that day are daggers in his defense at trial.
Even if Chesebro is tried alone, any conviction in an early trial will provide Willis with powerful momentum in her broader case against Trump and the other defendants.
