good day. i'm chris jansing live at msnbc headquarters in new york city. it is a first in american history, and a watershed moment for our justice system and our political culture. starting any minute now, americans will be able to watch live as the fulton county district attorney's office brings its case against former president donald trump's

so-called criminal enterprise. today's pretrial hearing, the first to be broadcast, will be focused on two of those 19 defendants, sidney powell and kenneth chesebro. the ripple effect of what the judge decides has significant implications for all of them including donald trump. plus, special counsel zack jack smith fed up and firing back, will his complaint about trump's relentless social media attacks actually change anything. and trading in the trademark sunglasses and military gear for orange prison attire. the one-time leader of the proud boys enrique tarrio set to spend the next 20 years behind bars. the judge rejecting his pleas for mercy and insisting what happened on january 6th, quote, can't happen again. so what is the status of the far right militant group he led, and will the sentence be a deterrent for would be extremists or a

rallying cry? so a lot of news today. we're going to start there in atlanta where we're getting our very first and rare look insides cases of donald trump and his 18 co-defendants. this is the courtroom of judge scott mcafee where any minute now he will preside over the first of what will likely be weeks or months of televised court dates. whether sidney powell and kenneth chesebro can sever their cases from the rest and potentially put their trials on track for late next month. let's take a listen as the judge begins this pretrial hearing. >> 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 i have executive district attorney day sha young, deputy district attorney will wooten and special prosecutor john floyd. >> thank you, mr. wade, and for mr. chesebro, who is the lead counsel today? >> good morning, your honor. my name is scott grubman, i'm representing mr. chesebro and with me i have court counsel -- >> and mr. grubman, have you received express authority to waive your client's presence today? >> i have, wrourn. >> and who do we have for ms. powell. >> brian rafferty on behalf of ms. powell, and i have received express permission to waive her appearance. >> okay, thank you, sir. >> all right, so just a few preliminary thoughts before we kick things off. to be clear, the scheduling order we entered for mr. chesebro 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 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? >> 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, let's do that during your argument and response. after we hear from defense on their motions. >> okay. >> okay. so i think just taking it alphabetically. there were two motions we scheduled to be heard today from mr. chesebro. so mr. grubman, the floor is yours and i think the idea would be to try to limit this to 20 or 30 minutes, we'll see where the discussion takes us, and go from there. >> your honor, would it be acceptable for your honor if my

and my cocounsel mr. rohr, there's kind of a natural split. i'd like to talk to the group of facts that will go to both of our motions, both the motion to sever counts and the motion to sever for ms. powell. i believe the court indicated you would want to hear arguments on both, and mr. roroo will talk specifically about the statutory factors, if that's okay. we won't take up more time than any one of us would have. >> okay. have at it. >> thank you, your honor. i want to start off by saying we recognize this is a rico prosecution. we recognize, and we do recognize that part of rico is providing prosecutors, at least the state would argue this, providing prosecutors with a little more ability to bring in conduct that's maybe broader than 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. chesebro 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. chesebro at most was only involved in that aspect of the conspiracy, specifically the allegations showed that mr. chesebro sent/received approximately 18 emails, all in his role as an attorney for the trump campaign, asked to opine on the application of the 12th amendment to the united states constitution, and the electoral contact, and then several other emails, most of those additional emails were simply transmitting the memos that mr. chesebro

wrote that are alleged in the indictment, and one or two other emails to certain state official discussing the logistics of how to go through the electoral contact. so that's what i'll call the alternate elector alleged expertise. mr. chesebro 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 ms. powell -- and nothing i say of course in this should indicate whatsoever that i'm commenting on the evidence against ms. powell, and i apologize, i know that's not ms. powell, but her representative, mr. rafferty. ms. powell's alleged to have engaged in a conspiracy, again, just accepting the allegations in the indictment as true, dealing with the computer systems down in coffey county,

georgia. in our motion's mr. chesebro is not even alleged to have undertaken anything even remotely related to the coffey county conspiracy, which i'll call it. then there's a thinker alleged conspiracy and that third alleged conspiracy i'll call -- i don't want to necessarily use her name because of the circumstances, but the poll worker conspiracy, where there are allegations that certain individuals name 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. chesebro, and again, that's not my defense take on it. that's according to the allegations in the indictment. i understand that rico does provide flexibility. what i would argue to the court,

of course rico does not overrule all of the rules and statutes and constitutional provisions that ensure that ms. chesebro not only have a speedy trial, which of course he's already demanded, but a fair trial. and p mr. arroro will talk more about the detailed case law, but it's pretty clear here, your honor, 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 just with mr. chesebro and ms. 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 months given the experience in some other high profile cases happening in this building under rico, you're going to have weeks if not months of testimony related to the coffee county

allegations. because, i mean, just reviewing the publicly available information related to the coffee county allegation shows that at least if 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 another full trial within that same trial about the alternate electors. i suspect that the government is going to -- or the state is going to say, well, it's all connected with the same purpose, and there have it makes sense to keep all these charges together and keep all these defendants together. 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, before we know it, 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 who will get up and talk about the case law, thank you for allowing us to do that. he's a lot more on top of it than me, and as you'll hear from 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. chesebro 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 ms. powell. he's never been there, he's nevada met ms. powell.

he's never emailed, texted or called her, he's never spoken with her directly or indirectly. although i'm not trying to steal the thunder from my colleague. same is said for ms. powell. why should ms. 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 to, 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. chesebro'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 of these other counts and all of these

other defendants in particular in this case ms. powell will very seriously jeopardize this. i think as mr. arroro will make clear, it is clearly well within the the discretion of the court, if not as we argue mandatory to grant this severance from ms. powell and also to grant the severance we asked for related to the counts that don't affect mr. chesebro. with that, your honor, i'm sure you'd like to hear some case law or supporting authority, so i will let my starter cocounsel mr. arroro get up and deal with that. thank you. >> good morning, your honor, which motion do you want me to address first? >> why don't we dive into the severance of defendants. i think we might have more to talk about it. >> i think, you know, when you

were da we probably battled against each other, 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 of weeks ago, both federally and in the state system. but in the end, i think fair assessment is it's your decision. i mean, there's nothing that says if x, then y, or if y then z, it's basically you're going to have to weigh the options. is it my voice or is it ringing? >> might be a little bit of a feedback. >> with regard to the severance with regards to ms. powell, i'll go ahead and start the court off with henderson versus state. may i approach, your honor? >> sure. if you go towards the second to last page on the back, i've highlighted that for the court and opposing counsel.

as you'll see it had notes 40, 41, and 42. like it says, everything's basically this your discretion. but this this case that just came out a couple of weeks ago, what we were talking about is sort of highlighted in regards to the facts in our case, right? the first issue is 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 do not overlap at all in the indictment 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 provide that 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 defense, not going to get into factor three. there's really just overflow and spillover. is the evidence against ms. powell going to impact her. 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 regard 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. chesebro. 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 bring in

anything in 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. the reason i'm bringing these up, in all those cases, everybody's charged with the same things. here they can argue it's a similar activity but not to speak for ms. powell, but essentially from what i understand from the public record is she was fired before this conspiracy actually even started up because she said something that was supposedly crazy and the trump people got rid of her. that's just my understanding from the public. again, i just wanted the court to focus in on what type of evidence would come in against ms. powell versus what we're charged with, which is solely paper wok and legal opinion on three different memos and some emails. so with that i'll approach the court on a rico case that dealt with drug dealing.

in federal court, march of this year. ninth circuit. again, i've highlighted everything that's -- that i believe to be relevant with regards to this case. >> what's the cite on that? >> the cite will be 2023 westlaw 2620148, and if your honor would look at just above head note 7, about three or pour pages in. i realize the bottom of my pages have sort of been cut off. if you just fold over three pages and i've highlighted it. and so, again, there they talk about co-defendants being charged in conspiracies, and you know, why there's a joinder in these matters. again, factually speaking, if you look at it, the charges are the same against each person and in the severance isn't necessarily going to change anything as far as that goes. 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 etch size we are -- emphasize we are charged solely with the elector portion and the ballots filled out when they were sent to washington, d.c. ms. powell is charged with i guess computer fraud and some other things as it goes to coffee county. ask lastly, before i rest on this part of this argument, the case that came down dealing with suppression, would have been -- versus united states back in 1993. and this also is a drug expertise. almost all the ricos have dealt with drugs. if your honor goes to the notes 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, they didn't grant the continuance -- i'm sorry, the severance. they just mostly talked about antagonistic defenses. one co-defendant would say the other guy did it. i didn't know anything about anything. they also talked about what evidence could be admitted that wouldn't be considered against someone else. and our position is if you look at georgia case law, it takes about would they be similar transactions so they could come in. none of that exists in this case. like mr. grubman said, there are essentially different mini conspiracies. >> what evidence are you pointing to that inadmissible in your trial than would be in another? >> with regards to ms. powell, we would object to a lot of that stuff because it would impugn our character as far as being associated with someone. it's admissible if we're going to trial together, you would have to give limiting instruction after limiting instruction, after limiting

instruction as far as that goes. at some point if we're going for a week or a month or however long the trial is, i don't want the baby to get thrown out with the bath water. that's why i'm emphasizing. we are charged with the intellectual part of this case. we wrote some memos, that's a separate motion we filed that we'll need to take up in the future about those issues. and then specifically in georgia we sent two emails 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. we are not labeled as having committed any predicate act in the rico conspiracy in this case. we then have six substantive counts that deal with whether the electors are fraudulent or not and whether or not the filled out paperwork is forgery or not. 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, did we intimidate people, were we suppressing the

vote, things like that that i've read about. that has nothing to do with us. our whole point is we were a thousand miles away from here. we wrote intelligent memos based on our experience in the gore versus bush campaign, which we also worked on. if there is a valid underlying defense, those arguments could be valid. we had nothing to do with the shenanigans, allegations in the state of georgia themselves. that's where i'm trying to distinguish it. you could very easily say there's two activities. you're essentially running two trials simultaneously in here and so i don't think giving limiting instructions and me objects to all of it is fair. 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 to what you wish because there is no specific x than y situation.

that would be my argument with regards to ms. powell. >> so let me unpack a few of those because tissue 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. chesebro never even interacted or knew ms. powell in any way, where is the spillover there if they've actually never interacted and these counts are 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 over glosses all this stuff. i don't know what evidence the government's going to try to present with regard 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 ms. powell. but at some point, the sheer volume of it all, there's going to be a connection.

we're sitting at the table together, and that carries a lot of weight. one of the few judges, you know the impact that's going to have. trs just a reality. i don't know if there's a legal theory that says it out there, 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, 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. what i'm trying to say severance traditionally, even when you and i interacted is a group of three or four people accused of committing a crime together, you murdered a guy, not you sold drugs, you murdered a month apart. there's a time lag here.

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

are you saying there's a defendant here who has overwhelming evidence compared to your situation? >> i don't have discovery yet. i don't know that 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 tv coverage and the public media. whereas on our side, we all have intellects talking about is the eca constitutional, is it not? frankly, judge, prior to this case, i didn't know what the 12th amendment was. 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. and 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 the indictment itself. at some point do we mix it all together and stop paying attention? i don't know. how many limiting instructions are you going to give in this case, is it going to be before every witness, which of course i'll have to object as not

relevant to us. i think it'd be easier to have a clean trial. that would be my position, and i'll let mr. rafferty address it, and then i can address the second issue. >> i wanted to make sure i understood exactly what you were asking for. are you saying it should just be a redacted indictment if you proceed to trial alone? are you saying that the state shouldn't be allowed to introduce any evidence other than what mr. chesebro has been charged with. >> what i'm asking for is a redaction, and we typically do that on cases where, you know, we have hearings on certain charges or a co-defendant falls out. if there's multiple murders or drug deals you block it out. we have seven counts. i get it. i don't necessarily think they're related. i'm not going to challenge that because the law is 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. 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 this kind of things, just like you redact some of the names in the indictment. >> so to be clear it's more just a logistical thing that the jury would get an indictment that's been -- not that they couldn't have witnesses talking about the entire rico enterprise as they allege it? >> right, 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, again, more about counts i've been charged with trying to sever, you know, 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 saying 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 title whether we go alone or with ms. powell as to those counts because i think the court can see there is some prejudice there having to read off a 98 page indictment when only six or seven pages apply to us. >> thank you very much. >> and will i be able to rebut the government? >> we'll see how it goes. >> good afternoon, your honor. the case against ms. powell is in a slightly different procedural posture than mr. chesebro and i thought it appropriate to sort of start with the fact that we filed a speedy trial demand within a day or mr. chesebro and we have not received a scheduling order or ruling or anything else about when the trial of ms. powell

will occur. my experience as a former federal prosecutor and in federal court is in situation where is you have multiple defendants like this in if one defendant makes a demand for a speedy trial, the court has the discretion under the speedy trial act 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. here in state court looking at the state law and the state's speedy trial act, virtue of our demand saying they're not ready for trial, i think ms. powell has to be severed out from the remaining 17. so the question for today in my mind is whether the trial of ms. powell will be joint with mr. chesebro or not. i think based on all of the law that i've seen- and i haven't seen anything to the contrary, her demand for speedy trial cannot be trumped by the desire of the government to try everyone together when other defendants have moved to severance said they're not ready.

and so that's the first point i wanted to make. although the court hasn't issued a scheduling order, i think we are on the same path as mr. chesebro when this trial should happen which leads us to sort of the second question about whether or not mr. chesebro and ms. powell should be tried together. i echo many of the things that my co-defendant's counsel have say. although i have a very different view of the evidence and the evidence as it relates to ms. powell. i'll 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. if you look at that, you'll see that ms. powell had nothing to do with most of it. ms. powell had nothing to do with false statements to state legislators, nothing to do with false statements to high ranking government officials, nothing to do with false electoral college documents, nothing to do with the election worker here in fulton county, nothing to do with solicitations of the the president of justice, nothing to do with solicitations to the vice president. the only thing which she's

alleged to have involvement in is this coffee county matter, and frankly, your honor, the way the governor has characterized that, the evidence is going to show they're incorrect. she was not the driving force. the evidence will show she was not the driving force behind 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's behind this as has been in this indictment. her typewritten name does appear on a contract, but she never signed the contract and the contract isn't for coffee county, it's for another state. and she never signed it. and the most important part of this case, you know, with respect to the coffee county aspect of this case is the question of authorization and whether or not the visit down there was authorized or not, and there's a lot of public documents that are out there that demonstrate that numerous folks associated with coffee county authorized that visit. the video itself shows that.

ms. powell's name appears maybe a dozen times in this indictment. she has nothing to do with the electoral college aspects of this, which is going to involve 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. why does that matter? my presentation, my cross examination, my case is going to depend on my ability to present to a jury that she has nothing to do with what the government said she was involved in in coffee county. but all of my effort ss going to get washed away in days or weeks of testimony perhaps about the constitution and whether or not and under what circumstances, alternative electors can be put in place and whether the legal opinions of mr. chesebro and others have any sort of legal. all of that is 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 was about whether or not that visit was authorized and what role she had, which is very little or none. she's going to be prejudiced by all this other testimony about things she had nothing to do with. you have discretion as my counsel have said, you have the discretion to make a decision about the interest of judicial economy. i don't think a trial about coffee county, if that's what we have a trial about, is going to take weeks or months. i think the trial could be over in a couple of days, most of it is on video that a lot of folks have seen and there's a handful of emails, and that's really it. there isn't that much evidence. and so when the court thinks about its discretion about how it can exercise that discretion, move this case along, move mr. chesebro's case along, the best way to do that, frankly, is to try the cases separately.

i would ask the court to exercise the discretion that it has that my cocounsel have already set forth and sever ms. powell's case from mr. chesebro 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. chesebro'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 there's antagonistic defenses. as my cocounsel have said, my client doesn't know mr. chesebro, has never met him, has never spoke with him, there's no emails or documents or anything else. what he's accused of has absolutely nothing to do with ms. powell at all. i don't see that as antagonistic, that evidence presented at a trial with ms. powell is going to prejudice her in the same way that evidence

about what ms. powell did would prejudice mr. chesebro. thank you, your honor. >> thank you, sir. >> while mr. wooten is chomping 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 prepare to respond to. firstly, we will content 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, they're in excess of 150 witnesses that the state intends to call. 150 witnesses. judge, we contend that we must

prove the entire conspiracy against each and every one charged. each and 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 -- >> well, to be clear when you say two, has your position evolved from your filings of last week or from lately? >> it hasn't. it hadn't, judge, i just threw out the number just to give the court the difference in the number of times and the number of man-hours it will take to try the case once or twice. >> when you say twice, who is involved in each case? >> obviously the two who have requested severance here. >> up to 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 flesh that out a bit, you're saying that right now you would

predict that if it was just a trial of ms. powell and mr. chesebro that the state's going to need those same amount of witnesses, those same amount of exhibits and that same amount of time? >> absolutely. >> okay. >> your honor, for my portion, i do have a powerpoint. how does the court prefer that i do that? >> i think we'd have to get you on the zoom call so you could share a screen. >> okay. >> do you have a link for that? >> i do not, judge. >> all right, let's see if we can email you that.

>> does the governor have a paper copy of the powerpoint it can share with counsel? >> yes, yes. while i'm waiting on that email.

>> judge, i'm not seeing that email come through. >> just hold another minute. >> is it all right, could we

just make the powerpoint an exhibit if the government's going to use it to the record? >> we want to make it an exhibit? any objection here? >> no objection, your honor. >> all right. >> do we have an extra copy for ms. smith? >> we could share ours. i could share with mr. rafferty if hay don't have an extra copy. >> i did have a copy for the court, but i could convert ha to an exhibit if the court prefers. >> sure.

we see that they're trying to get that powerpoint together, i want to bring in nbc's garrett

haake who is following this from washington. we got some big news here, obviously we wanted to know how long this trial might take, for months, how many witnesses there could be, in excess of 150 of them. give us your summary of what we're seeing so far. >> yeah, chris, look, we've all been describing this case as sprawling and the government's first tip of their cards shows exactly how sprawling it would be with more than 150 witnesses they plan to call. of course that wouldn't include defense witnesses, and the government says it would take them at least four months to try this case, not including jury selection, a process that with defendants like trump on the list here could take weeks, if not months in and of itself. so we're getting a better handle on exactly the scope of the case that prosecutors down in fulton county want to put together, and we're hearing from these attorneys about why their clients don't want to be a part of it. each set of attorneys arguing why they should be split off from the main group and from one

another with the attorneys for kenneth chesebro arguing that his involvement in this was almost entirely intellectual, basically as the author of legal theories that sort of backed up some of what later became the former president's efforts to stay in power, but that he didn't touch other elements of the conspiracy that's alleged against him. that kind of throw sidney powell the other co-defendant under the bus saying we're separate from her too. her part of this only deals with the coffee county computer intrusions, the voting machines down there -- >> let me interrupt you because they've put up the powerpoint now, garrett. we're going to listen back in. thank you. >> two or more defendants are -- indicted, and our case law will rely on collins versus the state, 312 georgia 727. three factors to consider are the likelihood of the confusion of the evidence involved, the possibility that evidence against one defendant may be

considered against the other defendants, and the presence or absence of antagonistic defenses, and the position of the other side is that neither is saying that three is an issue, that there doesn't seem to be any antagonistic defense. obviously neither the presence of an antagonistic defense or the possibility that a separate trial would give the defense -- the defendant bears the burden of showing that a joint trial would be so prejudicial to amount to a denial of his or her right to due process. i want to talk about what's not a proper ground for severance first. and this is coming from mr. chesebro's motion to sever. he says in sum there has never been direct contact or communication between mr. chesebro and ms. powell. similarly there's no connection or joef lap between the overt or substantive charges between mr. chesebro and ms. powell. that is not a defense and that

is not a ground for severance. ms. powell's motion says ms. powell can receive a fair trial only if she's tried alone. the prejudice that would inner to her from a lengthy trial 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 26, a 2018 case. nothing in georgia's rico provisions requires that lowry, the defendant in that case had participated in or even been aware of all the alleged acts of racketeering 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 facet of the enterprise and all of its members were actors. and like wise the federal courts

agree this is an 11th circuit case, united states versus castro, improving the existence of a single rico conspiracy, the government does not need to prove that each conspirator was aware of all the details of the conspiracy or contemplated participating in the same related crime. we've heard a lot from both defendants about they didn't know the oh 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 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. that's it. evidence against one is evidence against all and as mr. wade noted to the court, the state's position is 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 cited by mr. chesebro in his motion. a case where severance was properly denied. it is not a rico case. brown versus the state, another case where severance was properly denied, not a rico case. baker versus the state, severance was properly denied, not a rico case. padget severance properly denied, not a rico case. jones versus the state, severance was properly denied, also not a rico case. sofiro versus the united states, severance was properly denied, that was not a rico case. henderson, which we just received just now, that was also not a rico case. severance was properly denied. mr. chesebro points to a couple of cases in his motion where a conviction was reversed on appeal, and as the court pointed out, in those cases, what the

appellate courts found was that at trial the evidence against one defendant was minimal, almost nothing compared to the evidence against the co-defendants, and so it was just fundamentally unfair that there was all this evidence that applied to one, very little that applied to the other and the jury may have been confused. look at defendant powell's list, e most of these are the same. again, ten 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 versus the state, 273, georgia 7882005 case. each actor in a conspiracy is responsible for the overt actions undertaken by all of the over cocon spir tors. willingham versus the state, georgia supreme court case 1995, where there's sufficient evidence of a common scheme or plan to commit a criminal offense, joinder is authorized. and our federal courts kind of take both of these concepts in the united states versus caparali, 1437 an 11 circuit case in atlanta, 1996. an account charging a single rico violation is permissible, even if different defendants are charged with different acts of racketeering, if they're in furtherance of the overarching

rico experience charge. in our case, the state's theory of the case and as laid out in the indictment, each and every one of those overt acts charged and all of the offenses charged from counts 1 to 41 were in furtherance of the same overarching rico experience which was to unlawfully affect the outcome of the 2020 election in the state of georgia. every single one. i understand the other side's argument that, you know, my client's over here in coffee county, my client is over here in wisconsin sending off e-mails. the problem for them is it doesn't matter. it's all part of the same overarching rico conspiracy and the state's theory of the case as alleged in the indictment is as this enterprise operated in multiple states and operated quite a lot in fulton county, that's why we have the case in fulton county, the conspiracy evolved. one thing didn't work. so we move on to the next thing. that thing didn't work, so we move on to the next thing.

that thing didn't work, so we move 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 over arching rico conspiracy. turning back to the factors that the court needs to look at and i'm just going to talk about factors one and two, the likelihood of confusion of evidence and the law, and the possibility that evidence against one defendant may be considered against the other defendant, which the other side agrees is not an issue here. 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. the allegations set forth in counts 2 through 41 are all included in that count 1, while

mr. chesebro may have never been to coffee county, the evidence about coffee county is evidence that the spr prize existed 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 court, any evidentiary spillover and the court asked about this issue, since evidentiary spillover is e vitiated would have been admissible against the movement in the context of a conspiracy severance will rarely be required. this is a first circuit court of appeals case, and we submit its persuasive authority here. again, turning to another example, united states versus diaz, a second circuit case, 1999. in a federal rico conspiracy case from the second circuit involving the latin kings. even when a defendant was implicated in one of nine separate murders carried out as

part of a pattern of racketeering activity, a joint trial was proper because all of the evidence was admissible against each and every one of the defendants to show multiple things, not just that they committed an act, but to show the existence and nature of the rico enterprise and to show the pa earn of racketeering activity on the part of each of the rico defendants as well as his or her relationship with the enterprise itself. and i just love this quote because i think it summed it up, again, 8th circuit court of appeals decision, persuasive authority, there in the united states versus keyho, the 8th circuit said it will be the rare case if ever where a trial court should sever the trial of alleged coconspirators. the other side pointed a little bit to this. but i did want to mention that any potential jury confusion can be addressed by other means, means other than severance, such as an instruction to the jury to separately consider the evidence as each defendant.

the state's position, because this is a conspiracy case, because it's a rico conspiracy case, that all of the evidence is admissible against all of the defendants. but even if that, you know, even if there were some issue to be extra caution, the court could give a limiting instruction and the state's position is it would not be limiting instruction after limiting instruction, because, again, all the evidence is admissible against all the defendants. also, the defendants ignore, completely ignore a long line of cases in georgia, to affirm the denial of severance for georgia rico act violations, all decided under the same principles i talked about. chauncey versus the state, georgia supreme court, 256 georgia 415, a 1986 decision, evans versus the state. >> i i think we've got the cites here. we'll look at those later. >> and those are provided to counsel here, and have copies of those as well for you.

under these principles, the defendants cannot satisfy the first two prongs, likely to lead to confusion of the evidence and the law, possibility that evidence against one may be considered against the other because that's allowable. that's exactly what a rico conspiracy case is allowed to do. i don't think i need to talk too much about the third prong because of the statements of the other side. just what hit, a 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 court highlighted certain situations where there was an antagonistic defense, and again, we won't get into those because of where we're at. the bottom line there is it has to be prejudicial as to amount

to a denial of his or her right to a due process. i want to talk about public policy, and our courts have hit on this issue, strongly disfavors severance and complex conspiracy cases for several reasons. one is judicial economy, there's been arguments on the other side, somehow severing this, 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. having those people come and testify multiple times over and over would inconvenience and more importantly traumatize them. consistency of the verdicts.

i've got a little bit of case law that talks about that, efficient use of state resources and fundamental fairness. justice scalia astutely observed it would impair both the efficiency and the fairness of the criminal justice system to require in all of these cases of joint crimes where incriminating statements exist that prosecutors bring separate proceedings, presenting the same evidence again and again requiring victims and witnesses to repeat the inconvenience and sometimes trauma of testifying and randomly favoring the last tried defendants who have the advantage of knowing the prosecution's case beforehand. he goes on to say, joint trials generally serve the interests of justice by avoiding inconsistent verdicts, enabling more accurate assessment of relative culpability, and he points out that these are sometimes advantages that operate to a defendant's benefit, so even apart, he says, from these tactical considerations, joint trials generally serve the

interests of justice by avoiding the scandal, and inequity of inconsistent verdicts. our georgia courts agree, they agree that use of resources is an important concern. montgomery versus state, 156 georgia 448, a 1980 case, the same witnesses, evidence and charges would be used against all defendants thus effecting judicial economy, 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, again, agrees. united states versus brown. 2007 decision, 500 f third 1229. we find considerations of judicial economy to weigh heavily against severance in light of the substantial systemic interest in handling this complex conspiracy case in

this trial. it was a two-month trial. the judge believes this would be at least a four-month trial. the state's position have not met the burden to factors set forth in collins, presents no likelihood of confusion of the evidence or law applicable to any defendant because all of the evidence is applicable to all of the defendants. all of the law is applicable to all of the defendants. evidence may be properly considered e against each of the defendants in a rico conspiracy case so there's no risk of the spillover effect. just to mention three again, that's not an issue here. that's all i have unless you have any questions. >> so these, again, the three factors, those are just, would you agree those aren't exclusive. >> yes, your honor, absolutely. >> so we're really supposed it take into consideration the circumstances of the entire case and anything that might be present in this case may not be in others, right? >> yes, your honor. >> so i guess some of the