Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Three United States Senators, we're opening up Pandora's box. I
Speaker 2: think the system in this country is getting off the rails,
Speaker 2: and we have to be careful not to use the
Speaker 2: legal system as a political tool.
Speaker 3: Senator Lindsay Graham says he did nothing wrong in the
Speaker 3: face of the special grand jury report that recommended indictments
Speaker 3: against Graham and several other prominent Republicans. The Special Purpose
Speaker 3: Atlanta Grand Jury investigated twenty twenty election meddling for more
Speaker 3: than two years, hearing testimony from seventy five witnesses, and
Speaker 3: in the report made public on Friday, it recommended indictments
Speaker 3: against twice as many people as the nineteen ultimately charged
Speaker 3: by Fulton County Prosecutor Fanny Willis in her racketeering case.
Speaker 3: Joining me is former federal prosecutor j Ma Garule, a
Speaker 3: professor at Notre Dame Law School, Jimmy. Thirteen grand jurors
Speaker 3: voted to indict Graham, while seven voted not to the
Speaker 3: vote was seventeen to four to indict former Georgia Senator
Speaker 3: David Purdue and fourteen to six to indict former Georgia
Speaker 3: Senator Kelly Loffler. What does it tell you that the
Speaker 3: DA decided not to indict them?
Speaker 1: Well, I think the fact that there were a substantial
Speaker 1: number of members of the grand jury in each of
Speaker 1: these three cases that voted no raised the possibility that
Speaker 1: there could be reasonable doubt if criminal charges were brought
Speaker 1: against these three senators, if they went to trial, that
Speaker 1: members of the trial jury might likewise agree that there
Speaker 1: was insufficient evidence to prosecute. And we're talking about a
Speaker 1: trial jury. All you need is one holdout, one no.
Speaker 1: And so the prosecutor in this case deciding to not
Speaker 1: bring criminal charges with respect to some of the individuals
Speaker 1: that were under investigation.
Speaker 3: Can this information help either the defense or the prosecution either.
Speaker 1: At trial or I don't know that it does. I
Speaker 1: think from a broader perspective, there are a couple of
Speaker 1: interesting takeaways for me. I mean, first of all, the
Speaker 1: fact that as many as thirteen members of the Special
Speaker 1: Grand Jury believe that Senator Graham had engaged in criminal conduct,
Speaker 1: specifically to influence the outcome of the presidential election on
Speaker 1: his face, is very disturbing, I mean very disturbing. And
Speaker 1: then you know, again, several members of the special grand
Speaker 1: jury reached a similar result with respect of these two
Speaker 1: other Georgia senators. And then for me, you know, one
Speaker 1: other aspect of this is that three other individuals that
Speaker 1: again there were grand jurors that one or two indict
Speaker 1: ultimately they were not indicted, were lawyers, and we got
Speaker 1: Boris Epstein, Kleta, Mitchell lynn Wood. These are lawyers. And
Speaker 1: this is in addition to the Milton County indictment that
Speaker 1: has charged nineteen individuals, eight of which were lawyers, and
Speaker 1: so Hessel Hooyer and a law professor. This is very
Speaker 1: disturbing that we have lawyers that are involved directly, indirectly, implicated,
Speaker 1: directly indirectly in criminal activity involving overturning a presidential election.
Speaker 1: I mean, it's just it's an embarrassment. It's shameful for
Speaker 1: the legal profession.
Speaker 3: And in the meantime, the clock is ticking toward the
Speaker 3: trial date of at least two of those attorneys in
Speaker 3: the Georgia Rico case against Donald Trump and eighteen accused
Speaker 3: co conspirators for allegedly trying to overturn the results of
Speaker 3: the twenty twenty presidential elections and defendants Kenneth Chesbro and
Speaker 3: Sidney Powell asked for a speedy trial but not together,
Speaker 3: But on Wednesday, the trial judge Scott McAfee ruled that
Speaker 3: they would be tried together.
Speaker 4: So, based on Westman presented today, I'm not finding the
Speaker 4: severance from mister Chesboro or Powell is necessary to achieve
Speaker 4: a fair determination of the guilty innocence for either defendant
Speaker 4: in this.
Speaker 3: Case, Jimmy, the prosecutors say they'll be testimony from one
Speaker 3: hundred and fifty witnesses and they want all nineteen defendants
Speaker 3: tried together, and that it will take about four months.
Speaker 3: The judge said, more like twice that you've tried reco cases.
Speaker 1: What do you think it's hard to imagine a case
Speaker 1: involving the testimony from one hundred and fifty witnesses could
Speaker 1: be conducted in that short period of time. And the
Speaker 1: principal concern is not simply the number of witnesses that's
Speaker 1: a major concern, but the fact that you have nineteen
Speaker 1: defendants that are going to have the opportunity to cross
Speaker 1: examine each and every one of those witnesses. So every
Speaker 1: time the state puts on a witness, they conduct their
Speaker 1: direct examination. Then when it gets to cross examination, conceivably
Speaker 1: nineteen defense lawyers would have questions to ask of that witness,
Speaker 1: and that could take days, weeks even to complete that process.
Speaker 1: And then if there's a redirect again on recross, defense
Speaker 1: lawyers have an opportunity to recross the same witness now
Speaker 1: once again. And so it seems almost unmanageable to me
Speaker 1: as to how a trial of that magnitude, with that
Speaker 1: many defense lawyers, with that many defendants in the courtroom,
Speaker 1: is going to function in any efficient way.
Speaker 3: Fannie Willis in the Teacher's case, tried twelve defendants, So
Speaker 3: how does the judge decide what number is reasonable?
Speaker 1: It's difficult, you know, it's the difficult decision. And I've
Speaker 1: found rather curious the argument that both Kennis Chesbro and
Speaker 1: Sidney Powell, their lawyers have been making, which is something
Speaker 1: along the lines of, well, my client doesn't know Sidney
Speaker 1: Powell and my client wasn't involved in the activities that
Speaker 1: Sidney Powell was allegedly involved in. Well that doesn't matter.
Speaker 1: My response to that is, so what Because the law
Speaker 1: on conspiracy is clear that each co conspirator, it is
Speaker 1: not required that each co conspirator know the identity of
Speaker 1: every other co conspirator in the conspiracy. Nor is it
Speaker 1: required that each conspirator know all of the details of
Speaker 1: the conspiracy. It's enough that the conspirator agreed with someone
Speaker 1: else or others to commit to the objective and the
Speaker 1: purpose and the goal of the conspiracy, and then that's
Speaker 1: the conspiracy that becomes a crime in and of itself.
Speaker 1: And then the rule is that all of the overt
Speaker 1: acts in further into the conspiracy, no matter who commits them,
Speaker 1: are attributable and applicable to every other member of the conspiracy.
Speaker 1: And so it just isn't a good legal argument that
Speaker 1: they don't know one another and they didn't work together
Speaker 1: in the conspiracy. It's not a justification for severing their offendans.
Speaker 1: I think the stronger argument is, this case is so massive,
Speaker 1: the evidence is going to be so confusing, so overwhelming,
Speaker 1: that it's going to be difficult for the jurors to
Speaker 1: compartmentalize it all. But even then the counter argument is, well,
Speaker 1: even if you try him separately, the argument is going
Speaker 1: to be they're part of the conspiracy, and therefore the
Speaker 1: prosecutor is going to argue that this evidence of other
Speaker 1: overt acts and other crimes committed by other members of
Speaker 1: the conspiracy. That's relevant, and it's admissible against every other
Speaker 1: member of the conspiracy. Therefore, that's relevant, and we should
Speaker 1: be able to present it at the trial, even if
Speaker 1: it's only a trial of two defendants Chesborough and Sidney Powell.
Speaker 3: So prosecutors said they expected to put on the same
Speaker 3: lengthy case against any of the defendants who are tried separately.
Speaker 3: Would they really put on the same exact evidence if
Speaker 3: they just had let's say Chesbro and Powell and maybe
Speaker 3: John Eastman tried would they really put all that on?
Speaker 1: I think technically speaking, Fannie Willis can make that argument,
Speaker 1: and again the argument would be that they're members of
Speaker 1: the conspiracy, these two individuals, Chesbaro and Powell, and therefore
Speaker 1: crimes committed by the other seventeen members and overt act
Speaker 1: committed by the other seventeen members of the conspiracy are
Speaker 1: relevant and they're admissible against these two defendants Chessboro and Powell.
Speaker 1: So that argument has some legal basis. But I think
Speaker 1: were I really struggle is that from a practical standpoint,
Speaker 1: I just don't know how you manage a trial of
Speaker 1: nineteen defendants. Again, with this opportunity of every defendant having
Speaker 1: the opportunity to cross examine every government witness and potentially
Speaker 1: multiple times, and have that trial be completed in four months,
Speaker 1: it just doesn't seem feasible.
Speaker 3: The judge didn't seem to think it was feasible either,
Speaker 3: But he has to make a decision. He has some
Speaker 3: defendants who ask for a speedy trial, others who say
Speaker 3: they need more time. Could he really force those other
Speaker 3: defendants to go to trial in six weeks?
Speaker 1: Well, he could try to do that, but there's going
Speaker 1: to be an objection, of course, by the other defendants.
Speaker 1: They're going to say, well, we need more time. You know,
Speaker 1: the amount of discovery there are actually one hundred and
Speaker 1: sixty one overt acts that are listed set forth in
Speaker 1: the Fulton County indictment. We need more time to prepare
Speaker 1: to robut that evidence. And so then it becomes more
Speaker 1: of a constitutional due process argument that if we go
Speaker 1: to trial on October twenty third, as Fannie Willis is proposing,
Speaker 1: we're just not going to have time to prepare for trial,
Speaker 1: and therefore the trial is going to violate our due process,
Speaker 1: fundamental fairness rights.
Speaker 3: What I thought was interesting is the prosecutor argued that
Speaker 3: not only would this be inconvenient and perhaps traumatic for
Speaker 3: witnesses to testify more than once, but also that it
Speaker 3: would give an advantage to the defendants who were tried later,
Speaker 3: and that gives the appearance that the system isn't fair.
Speaker 1: That's a very good argument by the prosecution. There's no
Speaker 1: question that the prosecution will be disadvantaged if this trial
Speaker 1: nineteen defendants is broken up into multiple trials, because even
Speaker 1: in the first trial, if Fannie Willis is correct and
Speaker 1: the court permits or to put on one hundred and
Speaker 1: fifty witnesses, then the other seventeen defendants are going to
Speaker 1: have an opportunity to hear that testimony, review that testimony,
Speaker 1: and then prepare of evidence to rebut that testimony in
Speaker 1: their trial. And then there's always the danger when a
Speaker 1: witness testifies more than once that there are going to
Speaker 1: be some inconsistencies, likely some inconsistence in the testimony. They're
Speaker 1: not robots, and so their testimony isn't going to necessarily
Speaker 1: be exactly word verbatim from one trial to another, and
Speaker 1: so any inconsistencies, of course, are going to be seized
Speaker 1: on by the French lawyers to impeach the credibility of
Speaker 1: those witnesses, and then of course that again, you know,
Speaker 1: jeopardizes the state's case. That hurts the states case as well.
Speaker 3: The attorneys for Sidney Powell and Kenneth Chesbrow seem to
Speaker 3: be competing for which defendant had more evidence against them
Speaker 3: and would be more disadvantaged by being tried together. Does
Speaker 3: that indicate there might be conflicting defenses when they're tried together.
Speaker 1: Well, there could be, and there's already kind of some
Speaker 1: murmurings to that effect at the hearing where Chesburrow's attorney
Speaker 1: is kind of pointing to and saying, you know, we
Speaker 1: weren't involved in the crazy stuff that Sidney Powell's doing,
Speaker 1: and so it's kind of again we're beginning to see
Speaker 1: the code defend is pointing the finger at one another.
Speaker 1: That of course, I think actually benefits the prosecution. But
Speaker 1: it's complicated in terms of if the court decides that
Speaker 1: nineteen defendants tried in a single trial is just unmanageable,
Speaker 1: then the question is, well, how do you divide it up?
Speaker 1: Do you divide the trial up based upon groups of
Speaker 1: defendents that were engaged and involved in similar criminal activity,
Speaker 1: such as the fake elector scheme. Let's try all of
Speaker 1: those defendants together, and then with respect to other defendants
Speaker 1: that we're involved in other kind of unique aspects of
Speaker 1: the subplots of the broader conspiracy, will try them separately.
Speaker 1: It could very well fall along those lines. So at
Speaker 1: the end of the day, well, certainly, you know it's
Speaker 1: not going to be a single trial because Chesboro and
Speaker 1: Palla are going to be tried separately. But with respect
Speaker 1: to the remaining seventeen defendants, I think it's conceivable that
Speaker 1: they could be divided up by the court based upon
Speaker 1: kind of their criminal activity that's similar in kind, and
Speaker 1: that could result in maybe two or three additional separate trials.
Speaker 3: Chessbro's attorney said, the prosecutors clearly want Trump sitting at
Speaker 3: the table with the other defendants, so I.
Speaker 1: Thought, yes, so, yeah, exactly, So that's not unusual. I mean,
Speaker 1: in any conspiracy, you certainly want the head of the
Speaker 1: criminal enterprise at the table. I mean, you want all
Speaker 1: of the defendants that were involved in the criminal enterprise
Speaker 1: to be at the table. The practical reality is, though,
Speaker 1: at some point, it just becomes unwieldy and unmanageable. If
Speaker 1: the scope of the conspiracy is so broad and encompasses
Speaker 1: so many participants, so many co conspirators, as this particular
Speaker 1: enterprise does, that it just becomes unwilling and unmanageable to
Speaker 1: have them tried in a single criminal trial.
Speaker 3: Do you think the judge was right in refusing to
Speaker 3: sever Powell in Chesburro's trials?
Speaker 1: Yeah, I think so. I don't think that there's a
Speaker 1: compelling due process argument that if you try the two
Speaker 1: of them together that somehow that's going to violate the
Speaker 1: due process rights of Chesburo. And the court said so much.
Speaker 1: You know, the court on the record made that point.
Speaker 1: He just was not convinced that it would be unfair
Speaker 1: to try the two of them together. So I think
Speaker 1: that decision and that ruling a sound ruling. What I'm
Speaker 1: waiting to see is what he decides. I think he
Speaker 1: gave Fannie Willis, the prosecutor, until Tuesday to file some
Speaker 1: additional materials and arguments on having all of the defendants
Speaker 1: tried together. On October twenty three, I think he's probably
Speaker 1: going to reject that argument, and then the question is
Speaker 1: how is he going to divide up the rest of
Speaker 1: the defendants, and I think it's likely going to be
Speaker 1: two or three additional separate trials.
Speaker 3: Thanks so much, Jimmy. That's Professor Jimmy Garul of Notre
Speaker 3: Dame Law School. And that's it for this edition of
Speaker 3: The Bloomberg Law Show. Remember you can always get the
Speaker 3: latest legal news on our Bloomberg Law Podcast. You can
Speaker 3: find them on Apple Podcasts, Spotify, and at www dot
Speaker 3: Bloomberg dot com slash podcast Slash Law, and remember to
Speaker 3: tune into The Bloomberg Law Show every weeknight at ten
Speaker 3: pm Wall Street Time. I'm Jumi Grosso and you're listening
Speaker 3: to Bloomberg