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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Three United States Senators, we're opening up Pandora's box. I

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Speaker 2: think the system in this country is getting off the rails,

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Speaker 2: and we have to be careful not to use the

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Speaker 2: legal system as a political tool.

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Speaker 3: Senator Lindsay Graham says he did nothing wrong in the

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Speaker 3: face of the special grand jury report that recommended indictments

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Speaker 3: against Graham and several other prominent Republicans. The Special Purpose

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Speaker 3: Atlanta Grand Jury investigated twenty twenty election meddling for more

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Speaker 3: than two years, hearing testimony from seventy five witnesses, and

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Speaker 3: in the report made public on Friday, it recommended indictments

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Speaker 3: against twice as many people as the nineteen ultimately charged

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Speaker 3: by Fulton County Prosecutor Fanny Willis in her racketeering case.

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Speaker 3: Joining me is former federal prosecutor j Ma Garule, a

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Speaker 3: professor at Notre Dame Law School, Jimmy. Thirteen grand jurors

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Speaker 3: voted to indict Graham, while seven voted not to the

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Speaker 3: vote was seventeen to four to indict former Georgia Senator

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Speaker 3: David Purdue and fourteen to six to indict former Georgia

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Speaker 3: Senator Kelly Loffler. What does it tell you that the

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Speaker 3: DA decided not to indict them?

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Speaker 1: Well, I think the fact that there were a substantial

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Speaker 1: number of members of the grand jury in each of

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Speaker 1: these three cases that voted no raised the possibility that

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Speaker 1: there could be reasonable doubt if criminal charges were brought

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Speaker 1: against these three senators, if they went to trial, that

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Speaker 1: members of the trial jury might likewise agree that there

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Speaker 1: was insufficient evidence to prosecute. And we're talking about a

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Speaker 1: trial jury. All you need is one holdout, one no.

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Speaker 1: And so the prosecutor in this case deciding to not

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Speaker 1: bring criminal charges with respect to some of the individuals

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Speaker 1: that were under investigation.

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Speaker 3: Can this information help either the defense or the prosecution either.

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Speaker 1: At trial or I don't know that it does. I

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Speaker 1: think from a broader perspective, there are a couple of

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Speaker 1: interesting takeaways for me. I mean, first of all, the

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Speaker 1: fact that as many as thirteen members of the Special

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Speaker 1: Grand Jury believe that Senator Graham had engaged in criminal conduct,

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Speaker 1: specifically to influence the outcome of the presidential election on

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Speaker 1: his face, is very disturbing, I mean very disturbing. And

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Speaker 1: then you know, again, several members of the special grand

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Speaker 1: jury reached a similar result with respect of these two

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Speaker 1: other Georgia senators. And then for me, you know, one

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Speaker 1: other aspect of this is that three other individuals that

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Speaker 1: again there were grand jurors that one or two indict

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Speaker 1: ultimately they were not indicted, were lawyers, and we got

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Speaker 1: Boris Epstein, Kleta, Mitchell lynn Wood. These are lawyers. And

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Speaker 1: this is in addition to the Milton County indictment that

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Speaker 1: has charged nineteen individuals, eight of which were lawyers, and

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Speaker 1: so Hessel Hooyer and a law professor. This is very

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Speaker 1: disturbing that we have lawyers that are involved directly, indirectly, implicated,

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Speaker 1: directly indirectly in criminal activity involving overturning a presidential election.

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Speaker 1: I mean, it's just it's an embarrassment. It's shameful for

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Speaker 1: the legal profession.

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Speaker 3: And in the meantime, the clock is ticking toward the

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Speaker 3: trial date of at least two of those attorneys in

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Speaker 3: the Georgia Rico case against Donald Trump and eighteen accused

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Speaker 3: co conspirators for allegedly trying to overturn the results of

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Speaker 3: the twenty twenty presidential elections and defendants Kenneth Chesbro and

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Speaker 3: Sidney Powell asked for a speedy trial but not together,

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Speaker 3: But on Wednesday, the trial judge Scott McAfee ruled that

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Speaker 3: they would be tried together.

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Speaker 4: So, based on Westman presented today, I'm not finding the

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Speaker 4: severance from mister Chesboro or Powell is necessary to achieve

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Speaker 4: a fair determination of the guilty innocence for either defendant

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Speaker 4: in this.

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Speaker 3: Case, Jimmy, the prosecutors say they'll be testimony from one

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Speaker 3: hundred and fifty witnesses and they want all nineteen defendants

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Speaker 3: tried together, and that it will take about four months.

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Speaker 3: The judge said, more like twice that you've tried reco cases.

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Speaker 1: What do you think it's hard to imagine a case

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Speaker 1: involving the testimony from one hundred and fifty witnesses could

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Speaker 1: be conducted in that short period of time. And the

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Speaker 1: principal concern is not simply the number of witnesses that's

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Speaker 1: a major concern, but the fact that you have nineteen

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Speaker 1: defendants that are going to have the opportunity to cross

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Speaker 1: examine each and every one of those witnesses. So every

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Speaker 1: time the state puts on a witness, they conduct their

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Speaker 1: direct examination. Then when it gets to cross examination, conceivably

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Speaker 1: nineteen defense lawyers would have questions to ask of that witness,

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Speaker 1: and that could take days, weeks even to complete that process.

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Speaker 1: And then if there's a redirect again on recross, defense

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Speaker 1: lawyers have an opportunity to recross the same witness now

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Speaker 1: once again. And so it seems almost unmanageable to me

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Speaker 1: as to how a trial of that magnitude, with that

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Speaker 1: many defense lawyers, with that many defendants in the courtroom,

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Speaker 1: is going to function in any efficient way.

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Speaker 3: Fannie Willis in the Teacher's case, tried twelve defendants, So

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Speaker 3: how does the judge decide what number is reasonable?

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Speaker 1: It's difficult, you know, it's the difficult decision. And I've

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Speaker 1: found rather curious the argument that both Kennis Chesbro and

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Speaker 1: Sidney Powell, their lawyers have been making, which is something

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Speaker 1: along the lines of, well, my client doesn't know Sidney

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Speaker 1: Powell and my client wasn't involved in the activities that

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Speaker 1: Sidney Powell was allegedly involved in. Well that doesn't matter.

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Speaker 1: My response to that is, so what Because the law

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Speaker 1: on conspiracy is clear that each co conspirator, it is

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Speaker 1: not required that each co conspirator know the identity of

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Speaker 1: every other co conspirator in the conspiracy. Nor is it

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Speaker 1: required that each conspirator know all of the details of

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Speaker 1: the conspiracy. It's enough that the conspirator agreed with someone

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Speaker 1: else or others to commit to the objective and the

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Speaker 1: purpose and the goal of the conspiracy, and then that's

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Speaker 1: the conspiracy that becomes a crime in and of itself.

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Speaker 1: And then the rule is that all of the overt

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Speaker 1: acts in further into the conspiracy, no matter who commits them,

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Speaker 1: are attributable and applicable to every other member of the conspiracy.

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Speaker 1: And so it just isn't a good legal argument that

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Speaker 1: they don't know one another and they didn't work together

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Speaker 1: in the conspiracy. It's not a justification for severing their offendans.

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Speaker 1: I think the stronger argument is, this case is so massive,

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Speaker 1: the evidence is going to be so confusing, so overwhelming,

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Speaker 1: that it's going to be difficult for the jurors to

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Speaker 1: compartmentalize it all. But even then the counter argument is, well,

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Speaker 1: even if you try him separately, the argument is going

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Speaker 1: to be they're part of the conspiracy, and therefore the

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Speaker 1: prosecutor is going to argue that this evidence of other

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Speaker 1: overt acts and other crimes committed by other members of

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Speaker 1: the conspiracy. That's relevant, and it's admissible against every other

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Speaker 1: member of the conspiracy. Therefore, that's relevant, and we should

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Speaker 1: be able to present it at the trial, even if

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Speaker 1: it's only a trial of two defendants Chesborough and Sidney Powell.

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Speaker 3: So prosecutors said they expected to put on the same

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Speaker 3: lengthy case against any of the defendants who are tried separately.

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Speaker 3: Would they really put on the same exact evidence if

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Speaker 3: they just had let's say Chesbro and Powell and maybe

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Speaker 3: John Eastman tried would they really put all that on?

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Speaker 1: I think technically speaking, Fannie Willis can make that argument,

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Speaker 1: and again the argument would be that they're members of

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Speaker 1: the conspiracy, these two individuals, Chesbaro and Powell, and therefore

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Speaker 1: crimes committed by the other seventeen members and overt act

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Speaker 1: committed by the other seventeen members of the conspiracy are

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Speaker 1: relevant and they're admissible against these two defendants Chessboro and Powell.

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Speaker 1: So that argument has some legal basis. But I think

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Speaker 1: were I really struggle is that from a practical standpoint,

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Speaker 1: I just don't know how you manage a trial of

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Speaker 1: nineteen defendants. Again, with this opportunity of every defendant having

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Speaker 1: the opportunity to cross examine every government witness and potentially

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Speaker 1: multiple times, and have that trial be completed in four months,

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Speaker 1: it just doesn't seem feasible.

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Speaker 3: The judge didn't seem to think it was feasible either,

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Speaker 3: But he has to make a decision. He has some

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Speaker 3: defendants who ask for a speedy trial, others who say

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Speaker 3: they need more time. Could he really force those other

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Speaker 3: defendants to go to trial in six weeks?

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Speaker 1: Well, he could try to do that, but there's going

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Speaker 1: to be an objection, of course, by the other defendants.

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Speaker 1: They're going to say, well, we need more time. You know,

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Speaker 1: the amount of discovery there are actually one hundred and

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Speaker 1: sixty one overt acts that are listed set forth in

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Speaker 1: the Fulton County indictment. We need more time to prepare

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Speaker 1: to robut that evidence. And so then it becomes more

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Speaker 1: of a constitutional due process argument that if we go

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Speaker 1: to trial on October twenty third, as Fannie Willis is proposing,

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Speaker 1: we're just not going to have time to prepare for trial,

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Speaker 1: and therefore the trial is going to violate our due process,

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Speaker 1: fundamental fairness rights.

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Speaker 3: What I thought was interesting is the prosecutor argued that

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Speaker 3: not only would this be inconvenient and perhaps traumatic for

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Speaker 3: witnesses to testify more than once, but also that it

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Speaker 3: would give an advantage to the defendants who were tried later,

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Speaker 3: and that gives the appearance that the system isn't fair.

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Speaker 1: That's a very good argument by the prosecution. There's no

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Speaker 1: question that the prosecution will be disadvantaged if this trial

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Speaker 1: nineteen defendants is broken up into multiple trials, because even

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Speaker 1: in the first trial, if Fannie Willis is correct and

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Speaker 1: the court permits or to put on one hundred and

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Speaker 1: fifty witnesses, then the other seventeen defendants are going to

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Speaker 1: have an opportunity to hear that testimony, review that testimony,

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Speaker 1: and then prepare of evidence to rebut that testimony in

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Speaker 1: their trial. And then there's always the danger when a

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Speaker 1: witness testifies more than once that there are going to

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Speaker 1: be some inconsistencies, likely some inconsistence in the testimony. They're

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Speaker 1: not robots, and so their testimony isn't going to necessarily

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Speaker 1: be exactly word verbatim from one trial to another, and

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Speaker 1: so any inconsistencies, of course, are going to be seized

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Speaker 1: on by the French lawyers to impeach the credibility of

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Speaker 1: those witnesses, and then of course that again, you know,

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Speaker 1: jeopardizes the state's case. That hurts the states case as well.

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Speaker 3: The attorneys for Sidney Powell and Kenneth Chesbrow seem to

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Speaker 3: be competing for which defendant had more evidence against them

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Speaker 3: and would be more disadvantaged by being tried together. Does

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Speaker 3: that indicate there might be conflicting defenses when they're tried together.

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Speaker 1: Well, there could be, and there's already kind of some

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Speaker 1: murmurings to that effect at the hearing where Chesburrow's attorney

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Speaker 1: is kind of pointing to and saying, you know, we

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Speaker 1: weren't involved in the crazy stuff that Sidney Powell's doing,

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Speaker 1: and so it's kind of again we're beginning to see

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Speaker 1: the code defend is pointing the finger at one another.

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Speaker 1: That of course, I think actually benefits the prosecution. But

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Speaker 1: it's complicated in terms of if the court decides that

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Speaker 1: nineteen defendants tried in a single trial is just unmanageable,

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Speaker 1: then the question is, well, how do you divide it up?

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Speaker 1: Do you divide the trial up based upon groups of

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Speaker 1: defendents that were engaged and involved in similar criminal activity,

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Speaker 1: such as the fake elector scheme. Let's try all of

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Speaker 1: those defendants together, and then with respect to other defendants

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Speaker 1: that we're involved in other kind of unique aspects of

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Speaker 1: the subplots of the broader conspiracy, will try them separately.

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Speaker 1: It could very well fall along those lines. So at

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Speaker 1: the end of the day, well, certainly, you know it's

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Speaker 1: not going to be a single trial because Chesboro and

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Speaker 1: Palla are going to be tried separately. But with respect

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Speaker 1: to the remaining seventeen defendants, I think it's conceivable that

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Speaker 1: they could be divided up by the court based upon

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Speaker 1: kind of their criminal activity that's similar in kind, and

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Speaker 1: that could result in maybe two or three additional separate trials.

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Speaker 3: Chessbro's attorney said, the prosecutors clearly want Trump sitting at

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Speaker 3: the table with the other defendants, so I.

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Speaker 1: Thought, yes, so, yeah, exactly, So that's not unusual. I mean,

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Speaker 1: in any conspiracy, you certainly want the head of the

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Speaker 1: criminal enterprise at the table. I mean, you want all

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Speaker 1: of the defendants that were involved in the criminal enterprise

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Speaker 1: to be at the table. The practical reality is, though,

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Speaker 1: at some point, it just becomes unwieldy and unmanageable. If

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Speaker 1: the scope of the conspiracy is so broad and encompasses

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Speaker 1: so many participants, so many co conspirators, as this particular

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Speaker 1: enterprise does, that it just becomes unwilling and unmanageable to

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Speaker 1: have them tried in a single criminal trial.

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Speaker 3: Do you think the judge was right in refusing to

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Speaker 3: sever Powell in Chesburro's trials?

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Speaker 1: Yeah, I think so. I don't think that there's a

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Speaker 1: compelling due process argument that if you try the two

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Speaker 1: of them together that somehow that's going to violate the

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Speaker 1: due process rights of Chesburo. And the court said so much.

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Speaker 1: You know, the court on the record made that point.

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Speaker 1: He just was not convinced that it would be unfair

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Speaker 1: to try the two of them together. So I think

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Speaker 1: that decision and that ruling a sound ruling. What I'm

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Speaker 1: waiting to see is what he decides. I think he

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Speaker 1: gave Fannie Willis, the prosecutor, until Tuesday to file some

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Speaker 1: additional materials and arguments on having all of the defendants

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Speaker 1: tried together. On October twenty three, I think he's probably

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Speaker 1: going to reject that argument, and then the question is

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Speaker 1: how is he going to divide up the rest of

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Speaker 1: the defendants, and I think it's likely going to be

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Speaker 1: two or three additional separate trials.

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Speaker 3: Thanks so much, Jimmy. That's Professor Jimmy Garul of Notre

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Speaker 3: Dame Law School. And that's it for this edition of

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Speaker 3: The Bloomberg Law Show. Remember you can always get the

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