>> do we expect any serious rulings to emerge from this hearing today? >> i would be somewhat surprised if we see the judge rule from the bench in this matter. but again, this is the first time we're going to see him. we're going to see him in front of the cameras sort of taking a management role, an ownership role over this case. so again, we're going to get a feel for how he likes to run his courtroom and how he wants to manage this. >> you know, laura coates is with us, our legal expert. the judge has to decide whether to try all of these 19 defendants together or to break them up into smaller groups. what do you anticipate? >> well, first of all, just think about the fact that we're going to see all of this right now. it's televised. unlike a federal courtroom we're going to actually see a lot of this unfold and we'll get the demeanor of the judge, what his take -- is he going to scoff at the notion of having 19 people tried together or not. can fani willis give us some indication of whether or not her discussions about the movement to have a speedier trial, will that be all of them? and remember, keep in mind all this can happen even though we

don't yet know what the fate of mark meadows' motion to remove to federal court will be. it's very easy to look at this through a vacuum but remember, there's already a moment now to say can i get some of these cases into federal court. this is all considering and assuming that's not going to happen because without mark meadows or others it would be, you know, not 19 people. but this is going to be a very interesting hearing to get the room, the temperature of what's happening there. and also what is the preparation like right now for fani willis. is she really ready to go? and are those defense counsels who asked for an earlier trial date, were they calling a bluff or will their bluff now be called? >> and we will find out fairly soon. sara, it's interesting because we know that as all of this is unfolding right now a federal judge could rule at any moment now whether to allow the former white house chief of staff mark meadows to move his case from a state court in georgia to a federal trial. >> right. and the question really with this mark meadows motion is what does it mean for everybody else.

if mark meadows is successful in moving his case to federal court, and frankly there are a lot of people watching this who say it could be a relatively low bar for meadows to clear to be able to do this, they wouldn't be surprised if he succeeds, what does that mean for the other defendants? we've seen jeffrey clark, who again is another defendant in this case, a former justice department official, already argue in court filings i should be in federal court and everyone else should come along with me. so the federal judge is going to have to weigh that. and frankly it's going to be up to the federal judge in a lot of ways to decide that, to litigate that. they could make what this state court wants to do essentially moot. >> and we see the judge has just entered. judge scott mcafee. and he's asked everyone to rise. now everyone is seated. let's listen in. >> all right. let's go on the record with 23 sc 188947. who do we have as lead counsel for the state today? >> good afternoon, judge. nathan wade, special prosecutor

for the state. here present at the counsel table with me i have executive district attorney daisha young. deputy district attorney will wooton and special prosecutor john floyd. >> thank you, mr. wade. and for mr. cheseboro who's the lead counsel today? >> good morning, your honor. my name is scott grubman. i'm representing mr. cheseboro and with me i have co-counsel. >> mr. grubman have you received express authority to waive your client's presence today? >> i have, your honor. >> and who do we have for ms. powell? >> brian rafferty on behalf of miss powell and i have received express permission to waive her appearance. >> okay. thank you, sir. all right. just a few preliminary thoughts before we kick things off, to be clear the scheduling order we entered for mr. cheseboro earlier last week didn't contain any kind of a ruling on severance. so the plan would be to try to resolve as many of these issues as we can this week and to begin

entering scheduling orders for the remaining defendants by either the end of this week or early next week. so with that is there anything else we should take up before diving into argument, mr. wade? >> just the court had asked the state to be prepared to respond in its notice of the hearing, asked the state to be prepared to respond to a certain questions, good faith estimate in terms of time, how many witnesses and so forth. we're prepared to do that if the court would like. >> okay. well, let's do that during your argument and response when i have to hear from defense on their motions. okay. so i think just taking it alphabetically there were two motions we've scheduled to be heard today for mr. cheseboro. so mr. grubman, floor is yours. and i think the idea would be to try to limit this to 20 to 30 minutes. we'll see where the discussion takes us. and go from there.

>> would your honor, would it be acceptable for your honor if me and my co-counsel, mr. aurora, there's kind of a natural split, i'd like to talk about the kind of groups of facts that will go to both of our motions, both the motion to sever counts and the motion to sever from miss powell. i believe the court indicated you'd want to hear arguments on both. and then mr. aurora will talk more specifically about the statutory factors if that's okay with your honor. and it won't take more -- we won't take up more time than any one of us would have. >> okay. have at it. >> thank you, your honor. your honor, i want to start off by saying we recognize this is a rico prosecution. we recognize that. and we do recognize that part of rico is, you know, providing prosecutors, at least the state would argue this, and there is some case law to suggest this, providing prosecutors with a little more ability to bring in conduct that's maybe broader nan

had they charged a direct crime, for example, in this case. there are i would argue three, four, or five separate alleged conspiracies really contained in one alleged conspiracy in this indictment. mr. cheseboro is only concerned in terms of the evidence or allegations with what i'm going to call the alternate elector alleged conspiracy. the allegations contained in the indictment, and of course i'm not saying that i believe they are true, but accepting them as true, shows that mr. cheseboro at most was only involved in that aspect of the conspiracy, specifically the allegations show that mr. cheseboro sent approximately -- sent slash received approximately 18 e-mails, all in his role as an attorney for the trump campaign as to opine on the application of the 12th amendment to the united states constitution and the electoral contact.

and then several other e-mails. most of those e-mails were just transmitting the memos that mr. cheseboro wrote that are alleged in the indictment and one or two other e-mails to certain state officials discussing the logistics of how to go through the electoral contact. so that's what i'll call the alternate elector alleged conspiracy. mr. cheseboro has been indicted as part of that conspiracy. he's alleged to be part of that conspiracy. obviously, we will defend those charges. but that's conspiracy a, if you will. then there are two or three other conspiracies. with all due respect to miss powell, and nothing i say of course in this should indicate whatsoever that i'm commenting on the evidence against miss powell, and i apologize, i know that's not miss powell, but her representative, mr. rafferty. miss powell is alleged to have engaged in a conspiracy, again, just accepting the allegations in the indictment as true, dealing with the computer systems down in coffee county,

georgia. and those computer systems, as we allege in our indictment, mr. cheseboro -- or i'm sorry, in our motions, mr. cheseboro's not even alleged to have undertaken anything even remotely related to the coffee county conspiracy, which i'll call it. then there's a third alleged conspiracy. and that third alleged conspiracy i'll call -- i don't necessarily want to use her name because of the circumstances, but the poll worker conspiracy where there are allegations that certain individuals named in the indictment went and tried to apply some pressure tactics to a certain poll worker that i believe works here, lives here in fulton county. that is also a conspiracy that in no way, shape or form involves mr. cheseboro. and again, that's not my defense take on it. that's according to the allegations in the indictment. now, again, as i started off, your honor, i understand that

rico does provide flexibility. what i would argue to the court, however, is that of course rico does not overrule all of the rules and statutes and constitutional provisions that ensure that mr. cheseboro not only has a speedy trial which of course he's already demanded but a fair trial. and mr. aurora will talk more about the detailed case law. but it's pretty clear here, your honor, that if this case were allowed to go to trial with either all 19 defendants, which obviously it seems like that's probably not going to happen, but even with just mr. cheseboro and miss powell, you're going to have two cases in one. you're going to have -- and i'll be very interested to hear the government's good faith estimate of evidence and witnesses. but you are going to have days if not weeks, god forbid even, say, months given some experience in some other high-profile cases that are happening in this building under the rico statute, you're going

to have weeks if not months of testimony just related to the coffee county allegations. and because, i mean, if you've -- just reviewing the publicly available information related to the coffee county allegations shows that at least the state indicted it, it's an alleged wide-ranging conspiracy involving various people, involving very specific allegations about computer trespass and the like. and then you're going to have a full trial. same trial. but somehow you're going to have to have another full trial within that same trial about the alternate electors. now, i suspect that the government is going to -- or the state, i'm sorry, is going to say, well, it's all connected with the same purpose. and therefore it makes sense to keep all these charges together and keep all these defendants together. but your honor, i would ask you to please keep in mind that the purpose that we're talking about here, i mean, i guess you can

say the purpose is to elect donald trump president. but if that were the purpose and a prosecutor could use a purpose of that magnitude to try to tie together charges and defendants that otherwise have nothing to do with each other, then before we know it, i mean, millions of people, literally millions of people could have been charged in this conspiracy. these are totally separate cases, your honor. and i believe as you'll see from my colleague mr. aurora, who will get up and talk about the case law -- thank you for allowing us to do that because he's a lot more on top of that than me. and as you'll hear in mr. rafferty i suspect on behalf of ms. powell, it is going to significantly affect these defendants' rights to a fair and impartial trial. why should mr. cheseboro have to deal with a jury who's going to sit there for weeks if not months and listen to all of this evidence related to coffee

county and miss powell? he's never been there. he's never met miss powell. he's never e-mailed, texted or called her. he's never spoken with her directly or indirectly. and although i'm not trying to steal the thunder from my colleague mr. rafferty on behalf of miss powell, same is to be said for miss powell. why should miss powell have to sit there for weeks and months hearing evidence and testimony about the alternate slate of elector alleged scheme when she's not even alleged to have any involvement in that? and again, for the third and last time i'll go back and i do understand that rico exists whether we like it or not, the prosecution chose to bring this case under rico although they could have very well brought this case specifically against individuals who are charged with individual crimes but they chose not to and that's their discretion. but your honor, that should not override mr. cheseboro's right to a fundamentally fair trial. it's in the state constitution. it's in the federal constitution. it's in the georgia code.

and i'm really worried that allowing evidence related to all these other counts and all these other defendants, in particular in this case miss powell, will very seriously jeopardize this. i think as mr. aurora will make clear it is clearly well within the discretion of the court if not, as we argue, mandatory to grant this severance from miss powell and also to grant the severance we asked for related to the counts that don't affect mr. cheseboro. so with that, your honor, i'm sure you'd like to hear some case law or supporting authority. so i will let my smarter co-counsel, mr. aurora, get up and deal with that. thank you. >> good morning, your honor. which motion do you want me to address first, the severance of the counts or the parties? >> yeah, why don't we dive into the severance of defendants?

i think that's the one we might have more to talk about. >> all right. i think, your honor, when you were d.a. we probably ballotled against each other on some of these types of issues trying to get severances together but that was in another lifetime i guess. i've tried to put most of the case law that we've got that's in the briefs because in the end i'll give you some more 2023 cases that just came down a couple weeks ago both federally and in the state system. but in the end i think a fair assessment is it's your decision. there's nothing that says if x then ymt or if y then z. it's just you're going to have to weigh the options. is my voice or is it ringing? >> might be a little bit of a feedback. >> okay. so with regard to the severance, with regard to ms. powell, i'll go ahead and start the court off with henderson versus state. and i highlighted it for the state. and may i approach, your honor? >> sure. >> came down about 2 1/2 weeks ago, your honor. and if you go toward the second

to last page on the back i've highlighted that for the court and for opposing counsel. as you will see, it had notes 40, 41, and 42. like it said, everything's basically in your discretion. but in this case that just came down a couple weeks ago what we were talking about is sort of highlighted in regards to similarly the facts in our case, right? the first issue's going to be is there any confusion about the evidence, are there conflicting defenses, antagonistic defenses, and in the end is there going to be confusion as far as that goes. there will not be any antagonistic defenses because the two people don't overlap at all in the indictment or any evidence that i've seen. the issue is going to be what's the confusion. and one of the remedies is obviously jury charges. and in your case the question becomes how many jury charges can you bring -- can you provide to the government -- government. the jury as far as trying to

understand all these types of things. so this case that i gave you is a rico case involving gang-related type charges. and what it basically says is those two people were charged with the same crimes. in the end the court didn't sever those matters. we don't have that here right out of the gate. there's no antagonistic defenses. i'm not going to get into factor 3. there's really just overflow and spillover as far as that goes. so the question is is the evidence against miss powell going to impact her? and the reason i say that is we're charged in the rico and six predicate acts. the predicate acts only deal with the elector slate as far as who filled out the electors, was that fraudulent or not. with regards to what happened in coffee county you're going to have a ton of other charges from witness intimidation, computer hacking, fraud that has nothing to do with mr. cheseboro. the other thing you look at is are these other pieces of evidence going to be similar transactions potentially, which wouldn't be in this case because they have nothing to do with one

another, there's nothing similar about it. so when the government argues that it's rico and we get to bring in everything and the kitchen sink, i think the cases i'm going to cite you there's a couple more also from 2023 that talk about yeah, you can bring in everything and it's mostly been like gang rico type cases or some type of violence that's out there. it still gives you an out based on what you think. and the reason i bring these up is in all these cases everybody's charged with the same things. here they can argue it's a similar activity, but not to speak for miss powell but essentially from what i understand from the public record is she was fired before this conspiracy actually even started out because she said something that was supposedly crazy and the trump people got rid of her and whatever she did was sort of on a lark on her own as far as coffee county goes. that's just my understanding from the public. again, i just want the court to focus in on what type of evidence would come in against miss powell versus what we're charged with, which is solely paperwork and legal opinion on three different memos and some e-mails. so with that i'll approach the

court on a rico case that dealt with drug dealing. that just came down in federal court in march of this year. ninth circuit. again, i highlighted everything that's -- that i believe to be relevant with regards to this case. >> mr. arora, what's the cite on that? >> 2023 west law 2620418. and if your honor would look at just above headnote 7 it's going to be three, four pages in, i realize the bottom of my pages have sort of been cut off. but it would be if you just fold over three pages, and i've highlighted it, there they talk about co-defendants being charged in conspiracies and why there's a joinder in these matters. but again, the factually speaking, if you look at it, the charges are the same against each person and the severance isn't necessarily going to

change anything as far as that goes. and again, i know i'm repeating myself, but we don't have similar charges. it's completely different if you look at the indictment as far as that goes. again, i'll emphasize, we are charged solely with the elector portion and the ballots that they filled out that were sent up to washington, d.c. versus miss powell isn't charged with any of that. she's charged with i guess computer fraud and some other things as it goes to coffee county. and lastly, before i rest on this part of this argument, the seminal case that came down dealing with suppression would have been zafiro versus united states back in 1993. z-a-f-i-r-o. this also is a drug conspiracy because almost all the ricos and the conspiracies unfortunately dealt with drugs and violence and this sort of outlier or case of first impression for all of us here. and if your honor goes to the headnotes that are labeled 8, 9,

10, 11, 12, and 13 on the third page over they talk about the risk of a fair trial in this situation. again, in zafiro they didn't grant the continuance -- i'm sorry, the severance because the parties interacted and they just mostly talked about antagonistic defenses because one co-defendant would say the other guy did it, i didn't know anything about anything. but they also talk about what evidence could have been admitted that wouldn't be considered against someone else. so our position is if you look at georgia case law it talks about would they be similar transactions so they could come in or some other vehicle. none of that exists here in this case. and like mr. grubman said they're essentially different mini conspiracies within this entire rico act. >> so what evidence are you pointing to that's inadmissible in your trial than would be in another? >> with regard to miss powell, we would object to a lot of that stuff because it would impugn our character as far as being associated someone which they

would have to be proved. you would have to give limiting instruction after limiting instruction after limiting instruction as far as that goes and at some point if we're going for a week or a month or however long a trial is i don't want the baby to get thrown out with the bathwater. that's why i'm emphasizing we are charged with the ipt elect'll part of this case. we wrote some memos about how the eca and 12th amendment works and that's a separate motion we filed we'll need to take up in the future about those issues. and then specifically in georgia we sent two e-mails to the head of the republican party as alleged. that's it. in the rico counts -- in the rico count there's 160-some-odd overt acts. as the court knows, there's an overt act which doesn't have to be a crime and there's predicate acts. we are not labeled as having commit nid predicate act in the rico conspiracy in this case. we then have six substantive counts all that deal with whether the electors are fraudulent or not and whether they filled out the paperwork, it was forgery or not. that's essentially all of it. with her you don't have that. you've got what happened in coffee county as far as did we

have computer fraud, computer trespass, intimidated people, were we suppressing the vote, things like that that i've read about and i've seen the public atmosphere which is going to come up. that has nothing to do with us. our whole point is we were 1,000 miles away from here. we wrote intelligent memos based op our experience in the gore versus bush campaign which we also worked on, and we basically said if there is a valid underlying offense then the eca and those arguments that i'm making could be valid. we had nothing to do with the actual shenanigans, allegations, whatever, in the state of georgia necessarily themselves. and that's where i'm trying to distinguish it. because you could very easily say it's just two defendants so there may not be a confusion of who's what, but you're essentially running two trials simultaneously in here. so i don't think giving limiting instructions or me objecting to all of it is fair. and i think that's what zafiro and some of the other cases talk about. and i brought those up because even though they ruled against us in everything the analysis was relatively sound and in the

end it says you can do what you wish because there is no specific x then y situation. that would be my argument in regards to miss powell. ? so let me unpack a few of those. so under the kind of traditional three-prong metric we're looking at, one of the recurring themes is spillover evidence. and if you're saying that essentially what we've got are two different trials or two different conspiracies that have been joined under this umbrella and you said that mr. cheseboro never even interacted or knew miss powell in any way, where's the spillover there? if they've actually never interacted on these counts, they're entirely separate as you keep kind of pointing out. >> the spillover is essentially we can't hide the elephant in the room that sort of overglosses all this stuff. i don't know what evidence the government's going to try to present with regards to how they prove their rico conspiracy or the knowledge or those types of things. what i'm saying is yes, there's going to be separate evidence going up against miss powell but at some point the sheer volume

of it all, there's going to be sort of a connection. we're sitting at the table together. and that carries a lot of weight. your honor's one of the very few judges that's done a ton of trials as far as that goes. and you know the impact that's going to have as far as that goes. that's just a reality. i don't know if there's a legal theory that says it out there but you and i both know that's going to happen. >> and i'm not discounting that that it might be obviously inconvenient and burdensome and it might take a lot of time. but do we have any case -- you cited to the price case, i think, as a reversal of a denial of severance. >> yes, your honor. >> have there been any other cases in the 43 years since then where a denial of severance was reversed? >> it's incredibly rare. i haven't found it. i'm sure somewhere in this country that's happened as far as that goes. but what i was trying to say is severance traditionally, even like when you and i interacted, is in a group of three or four people accused of committing a crime together, specifically you murdered this case or you sold these drugs, you did this. it's not you sold drugs, you murdered on a separate day a

month apart, whatever it might be. there's a time lag here. there's a completely different set of facts that go with it. there's no interaction or knowledge as far as the parties go. so there's no way for us to presume how much damage that the evidence against one person might eventually spill over regardless of the instructions. and that's what i cited to you in the griffin case, you know, out of georgia from 2000 by the supreme court. it's a decision you have to make. i can't presume any of that, but having a ton of experience, you having a ton of experience in trials, you know that that is a substantial risk as far as impacting a fair trial because her charges are way more provocative versus the boring old charges that we have as far as just sort of the paperwork type situation. that's what i worry about because it hinges on racial issues, voter suppression, all those kinds of things are going to come up, you know, based on what's happened in coffee county and that scares the heck out of me. >> so are you saying that in line with price, i think the way price has been distinguished over the years is one defendant

had overwhelming evidence and the other defendant didn't really have much. are you saying there's a defendant here who has overwhelming evidence as compared to your situation? >> well, i don't have discovery yet so i can't necessarily say. i can just base it on what i think the evidence is going to be. i don't know if i'd call it overwhelming. it's completely different and i'm sure there's going to be a ton of it from what i've seen in the tv coverage and the public media as far as people speaking out on coffee county. whereas on our side we'll have intellects talking about is the eca constitutional, is it not, what is the 12th amendment. i mean, frankly, judge, prior to this case i didn't know what the 12th amendment was because i never thought about it. i don't know if anybody in this room had thought about it. or the eca. it was just people vote and somehow it all works out. so i've had to learn a lot of that stuff. it's just a completely different trial. i think you can see that in reading just the indictment in itself. and that's the fear. at some point do we just sort of mix it all together and stop paying attention? i don't know. and then how many limiting instructions are you going to give in this case? is this st. going to be before

every witness that comes up against miss powell? which i'll have to object is not relevant to us and impeaching and all these kinds of things. so i just think it would be easier to have a clean trial. it would be i amuch shorter trial in my opinion as far as that goes. so that will be my position and i'll let mr. rafferty address it and then i can address the second issue. >> why don't we just go ahead and since you're up we'll talk about severing counts. i wanted to make sure exactly what you were asking for. is this -- are you saying this should just be a redacted indictment if you proceed to trial? are you saying the state shouldn't be allowed to introduce any evidence other than what mr. cheseboro specifically has been charged with? >> what i'm asking for is a redaction. we typically do that on cases where we have hearings on certain charges or co-defendant falls out. if there's multiple murders or multiple drug deals you sort of block it out. i don't know how else to phrase it except maybe a severance of counts. we have seven counts. i get it. i don't necessarily think they're related but i'm not going to challenge that because the law weak on those issues. the 34 other counts involve a total of 13 defendants that

we're not affiliated with. our counts are involving six total people. but the other 34, again, as mr. grubman said, are multiple conspiracies within the conspiracy. and i don't see how that's relevant or even admissible in this case. it's not similar transaction material. so i'm just asking it to be redacted, i guess, if that's the correct word because we're not being judged on those counts, so we shouldn't be telling the jury all these kinds of things just like you'd redact some of the names in the indictment. >> so to be clear, it's more just a logistical thing that the juriy would get an indictment that -- not that they couldn't have witnesses talking about the entire rico enterprise as they allege. >> i'm not saying that -- all that's a matter of different objections down the road as to admissibility or relevance. but on this matter i'm just saying the jury shouldn't be seeing the other 34 counts that are out there or the i guess 18 other defendants or 17 other defendants that are out there. i did cite durden as far as your

discretion but that's more about counts i've been charged with trying to sever something apart. we don't have that time distinguishing. all our actions are within basically two weeks. so i'm not going to waste your time with that. i'm just saying what the other 34 counts deal with the time frames are different the people are different, the charges are different, so i would just like a sanitized indictment whether we go alone or with miss powell as to those counts because because you think the court can see the prejudice there having to read off a 98-page indictment when only i think six or seven pages apply to us. >> okay. fair enough. thank you, mr. arora. >> yes, your honor. and will i be able to rebut if the government chooses -- >> let's see where we go. >> okay. >> good afternoon, your honor. the case against miss powell is in a slightly different procedural posture than against mr. cheseboro and i just thought it would be appropriate to start with the fact we filed the speedy trial demand within a day or two of the speedy trial demand of mr. cheseboro and we

have not yet received a scheduling order or ruling or anything else about when the trial of miss powell will occur. my experience as a former federal prosecutor and in federal court under the speedy trial act is in situations where you have multiple defendants like this if one defendant makes a demand for a speedy trial or two, as we have here, the court has the discretion under the speedy trial act in federal court to still push the case down 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 miss powell has to be severed out from the remaining 17. so the question for today in my mind is whether the trial of miss powell will be joint with mr. cheseboro 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. cheseboro about when this trial should happen. which leads us to sort of the second question about whether or not mr. cheseboro and miss 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 miss 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 miss powell had nothing to do with most of it. miss 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 which she's alleged to have involvement as my co-counsel have said, is this coffee county matter and frankly, 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 teypewritten name does apper 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 in 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. miss 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. cheseboro 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 she's going to be prejudiced by all this other testimony by things 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 e-mails. 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. cheseboro'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. cheseboro'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. >> let me take up one again as it relates to the traditional framework, i think mr. cheseboro's team took this up, but one of those obviously is the antagonistic defenses. are you joining their position that you don't anticipate that being a consideration here? >> i don't think that there's antagonistic defenses because as my co-counsel have said my client doesn't know mr. cheseboro, has never met him, has never really spoken with him. there's no e-mails 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 miss

powell is going to prejudice her in the same way that mr. cheseboro's lawyers said that evidence about whatever miss powell did would prejudice mr. cheseboro. >> okay. >> thank you, your honor. >> thank you, sir. >> 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 everyone charged, each and everyone 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. >> well, to be clear, when you say two, has your position evolved from your filings of last week or from lately? >> 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. >> well, when you say twice, who is involved in each case? >> obviously the two who have requested severance here. >> okay. up to this point i thought the state's position was all 19 need to go on october 23rd. >> it is. and that continues to be our

position. >> okay. 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 miss powell and mr. cheseboro that the state's going to need those same amount of witnesses, those same amount of exhibits and that same amount of time? >> absolutely. >> okay. >> for my portion i do have a powerpoint. how does the court prefer that i do that? >> 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? >> i do not, judge, but -- >> all right. let's see if we can e-mail you that .

does the government have a paper copy of the powerpoint they can share with counsel? >> yes. while i'm waiting on that e-mail .

judge, i'm not seeing an e-mail come through. >> 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 cheseboro and sidney powell. we're waiting to hear more from the prosecutors. but elie honig, as you're listening to what kenneth cheseboro'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

cheseboro's attorney was arguing, kind of downplaying his arguments? >> yeah, what he is arguing here, cheseboro 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, cheseboro 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. >> and karen, the most significant thing that we heard just there at the end after cheseboro'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? >> 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 cheseboro did what he did was for this greater purpose on behalf of donald trump. >> 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 cheseboro and sidney powell severing their cases from the broader case, what did you make of that? >> 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. cheseboro would not be admissible against miss 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. >> all right. michael, stand by. we are now hearing from the prosecutors again in the courtroom. i want to go back to the courtroom. >> -- such defendants may be tried jointly or separately in the discretion of the trial court. and our case law relying on collins versus 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, and the presence or absence of antagonistic defenses. and i guess the position of the other side is neither is saying that three 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 chance of acquittal is sufficient to sever. 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. cheseboro's motion to sever. he says in sum there has never been any direct contact or communication between mr. cheseboro and miss powell. similarly, there is no connection or overlap between the overt acts or the substantive charges associated with mr. cheseboro and mr.

powell. that is not a defense and that is not a ground for severance. similarly, miss powell's motion says that miss powell can receive a fair trial only if she's tried alone, the prejudice that would inyoour 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 versus the state 347 georgia app 26 a 2018 case, nothing in georgia's rico provisions requires that lowry, the defendant in that case, have participated in or even been aware of all the alleged acts of racketeering activity committed in connection with the common enterprise. thompson versus 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 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. cheseboro 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. cheseboro 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, 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. 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 an 11th circuit case here in atlanta, 1986, joinder of co-defendants charging a single 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 ch charged from count one to count 41, were in accordance with the rico conspiracy which was to unlawfully affect the outcome of the election in the state of georgia. 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 2 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 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. we submit that it's pervasive authority here. turning to another example. united states versus diaz. a second circuit case from 1999 and a federal rico conspiracy

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 against it showed multiple things, not just that they committed an act but to show the existence and nature of the rico enterprise and show a part of the racketeering as well as his or her relationship with the enterprise itself. and i just love this quote because i think it sums it up. persuasive authority, there in the united states versus keho, it will be the rare case if ever where a trial court should severe the trial of alleged co-conspirators. i did want to mention that any potential jury confusion can be

addressed by other means, to separately considered the evidence to each defendant. the state's position, because this is a conspiracy case, because it's aric rick, all of the evidence is admissible against all the defendants. but even if that, you know -- even if there were some issuer to be extra cautious, the court could give a limiting instruction and it would not be limiting instruction after limiting instruction after limiting instruction because 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. chancy versus the state, a 1986 decision, evans versus the state -- >> i think we got the cites here. >> sure.

and those are provided to council and, your honor, i have copies as well for you. the defendants can not satisfy the first two prongs likely to lead to confusion in the law, evidence against one may be considered against the allow. that's allowable. that's 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 versus the state, just to point out a few georgia supreme court case 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 prejudicele as to the -- as to amount to a denial to his or her right of due process. i want to talk about public policy. public policy in our courts have hit on this issue strongly disfavor severance in complex conspiracy cases. 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 was impair the efficiency of the criminal justice system to require in all of these cases of joint crimes 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 insint verdicts and enabling assessment of

culpability. and they are sometimes advantages that operate to the defendants advantage. even apart from these tactical considerations, joint trials serve the interest of just 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 versus the state, 156, a 1980 case. 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 versus brown 2007 decision 505. we find it to weigh heavily against severance in light of

the substantial systemic interest in handling this complex conspiracy case in one trial. as we represented to you judge, they believe this would be at least a four-month trial. they have not met their burdens. the case presents no likelihood applicable to law because all of the law is applicable to all of the defendants. and, two, against against any defendant may be considered against each of the defendants in aric rick so there's no risk of this spillover effect. that's all i have, judge, unless you have any questions. >> just a few. so these -- again, the three factors, those are just -- would you agree that those aren't exclusive -- >> yes, your honor, absolutely. >> we're supposed to take into consideration the circumstances of the entire case and anything that might be present in t