WEBVTT - What's Next in Trump's Georgia Prosecution

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>We did nothing wrong at all, and we have every right,

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<v Speaker 1>every single right, to challenge an election.

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<v Speaker 2>That we think is dishonest.

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<v Speaker 1>So we think it's very dishonest. Donald Trump turned himself

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<v Speaker 1>in at the Fulton County Jail in Atlanta on Thursday

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<v Speaker 1>night to be booked on criminal racketeering charges. It's the

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<v Speaker 1>fourth time he's been booked in a criminal case, but

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<v Speaker 1>the first time his monk shot was taken. Trump is

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<v Speaker 1>at the center of the sprawling case over the efforts

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<v Speaker 1>to reverse Georgia's twenty twenty election results. All eighteen of

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<v Speaker 1>his co defendants have turned themselves in, including his former

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<v Speaker 1>chief of staff Mark Meadows, earlier in the day. The

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<v Speaker 1>next proceeding in the case is scheduled for Monday before

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<v Speaker 1>Atlanta Federal Judge Steve Jones, where Meadows is asking the

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<v Speaker 1>judge to move the case from state court to federal court.

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<v Speaker 1>Joining me is former federal prosecutor Robert Mentz, a partner

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<v Speaker 1>maccarter and English Bob. What are meadows arguments for moving

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<v Speaker 1>the trial to federal court?

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<v Speaker 2>So Meta's attorneys have cited a federal law known as

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<v Speaker 2>the Removal Statute, which generally allows any officer of the

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<v Speaker 2>United States who is facing criminal prosecution in state court

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<v Speaker 2>to move those proceedings to federal court if the case

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<v Speaker 2>relates to actions that were part of the individual's duties

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<v Speaker 2>as the federal officer. What Meadow's lawyers are arguing is

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<v Speaker 2>that all of the conduct that the legs in the

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<v Speaker 2>indictment really revolve around his role as chief of staff

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<v Speaker 2>to former President Trump, and they go through some of

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<v Speaker 2>the things, for example, arranging oval office meetings, contacting state

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<v Speaker 2>officials on the president's behalf, visiting a state government building,

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<v Speaker 2>setting up a phone call for the president. These are

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<v Speaker 2>the types of things they are arguing that one would

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<v Speaker 2>expect a chief of staff of the president to do,

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<v Speaker 2>and therefore they're arguing that it is within the conduct

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<v Speaker 2>the official conduct of mister Meadows, and therefore is something

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<v Speaker 2>that should be tried in federal court, not in state court.

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<v Speaker 1>And what is the response of the prosecutor Fannie willis.

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<v Speaker 2>The prosecutors arguing that the conduct at the legacy indictment

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<v Speaker 2>is outside the scope of mister Meadow's official duties. And

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<v Speaker 2>one of the things that she points to is the

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<v Speaker 2>fact that even mister Meadows admits that the conduct that

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<v Speaker 2>he was engaged in is political activity. That is something,

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<v Speaker 2>she argues, is a violation of something called the Hatch Act,

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<v Speaker 2>which prohibit political activity by executive branch employees acting under

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<v Speaker 2>their official capacity. So she says, even if somehow this

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<v Speaker 2>is within the scope of his duties, it's outside the

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<v Speaker 2>scope of his official duties because it's a violation of

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<v Speaker 2>this federal law called the Hatch Act. He also says

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<v Speaker 2>that he has no colorable federal defense because in order

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<v Speaker 2>to remove the case from state court to federal courts,

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<v Speaker 2>not only have to show that is within your official capacity,

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<v Speaker 2>but you also have to show that there is a

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<v Speaker 2>colorable federal defense. In other words, you can't raise a

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<v Speaker 2>state law defense in federal court and still get the

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<v Speaker 2>case removed. So here mister Meadows and his team is

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<v Speaker 2>arguing that the defense is under the supremacy clause, he

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<v Speaker 2>would be immune from prosecution because it's really a state

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<v Speaker 2>prosecutor trying to prosecute him for what is unquestionably conduct

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<v Speaker 2>within his official capacity. He's sort of tying this all

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<v Speaker 2>back into the hackhack argument and saying because the activity

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<v Speaker 2>is political it is a violation of federal law and

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<v Speaker 2>therefore not protected by the supremacy clause, and there is

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<v Speaker 2>no immunity defense available to him. So he argues that

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<v Speaker 2>it fails on both counts, and therefore the case needs

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<v Speaker 2>to stay in state court.

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<v Speaker 1>So who do you think has the better side of

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<v Speaker 1>the argument, Meadows or Willis.

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<v Speaker 2>Well. There have been cases where federal officials have been

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<v Speaker 2>involved in lawsuits and removed those the federal court, but

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<v Speaker 2>those have mostly been civil cases and not criminal cases.

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<v Speaker 2>I think here the defense has an uphill battle because

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<v Speaker 2>she's going to be able to show that, based on

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<v Speaker 2>these allegations, the violations do involve conduct that was outside

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<v Speaker 2>the scope of mister Meadow's official capacity and therefore doesn't

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<v Speaker 2>qualify for the type of case that would be removed

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<v Speaker 2>to federal court.

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<v Speaker 1>One reason might be because there are no cameras in

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<v Speaker 1>federal court, but there are a lot of other reasons

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<v Speaker 1>why defendants might want their case tried in federal court

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<v Speaker 1>as opposed to state.

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<v Speaker 2>Well, that's exactly right.

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<v Speaker 1>Now.

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<v Speaker 2>We should be clear that even if a case is

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<v Speaker 2>removed to federal court, it is not tried under federal law.

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<v Speaker 2>So you would have a federal judge applying state law

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<v Speaker 2>in a federal court room, and the sentence that would

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<v Speaker 2>be handed down would be handed down under state law.

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<v Speaker 2>And most importantly in this case, any sentence would not

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<v Speaker 2>be pardonable under federal law. So all of that would

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<v Speaker 2>rem even if the case were removed to federal court.

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<v Speaker 2>So why remove it at all? Well, there are some

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<v Speaker 2>benefits here that the defense might think is available to

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<v Speaker 2>them if they move to federal court, which is why

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<v Speaker 2>they're trying to file this motion. For one, the jury

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<v Speaker 2>pool in the federal case is a much bigger one

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<v Speaker 2>than there would be in the state case, and one

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<v Speaker 2>which I think the defense believes would be more favorable

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<v Speaker 2>to the defense here because it draws from a broader pool,

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<v Speaker 2>the entire northern districtive of Georgia, not just Fulton County,

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<v Speaker 2>and it is a jury pool then that, going by

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<v Speaker 2>the last election, was slightly more favorable to President Trump

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<v Speaker 2>than the Fulton County district, which went heavily for President Biden.

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<v Speaker 2>Another reason is that they may think that pulling a

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<v Speaker 2>state prosecutor out of their home court, so to speak,

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<v Speaker 2>moving them out of state court and putting him in

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<v Speaker 2>the unfamiliar turf of a federal courtroom might knock them

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<v Speaker 2>off their game a bit and make them a little uncomfortable.

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<v Speaker 2>There are also some procedural changes that would happen if

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<v Speaker 2>the case moved to federal court. For example, during the

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<v Speaker 2>vaid year, which is the part of the case where

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<v Speaker 2>prosecutors or judges interview prospective jurors, that's handled differently in

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<v Speaker 2>federal court. In federal court, the judge asks the questions

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<v Speaker 2>of the prospective jurors. In state courts, the attorneys that

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<v Speaker 2>ask those questions. So there are a number of differences

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<v Speaker 2>here that could slightly favor the defense in moving this

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<v Speaker 2>case to federal court. I think the largest one is

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<v Speaker 2>that they think they might get a more favorable jury pool,

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<v Speaker 2>and that's why they're trying to make this motion successful.

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<v Speaker 1>Yeah. I think we're up to four other defendants who

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<v Speaker 1>are also looking to move their cases from state to

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<v Speaker 1>federal court, and if Meadows succeeds, Trump might make a

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<v Speaker 1>similar move.

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<v Speaker 2>So the removal statute that mister Meadows is relying upon

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<v Speaker 2>in order to try to get this case removed from

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<v Speaker 2>state unmoved to federal court is actually a very old

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<v Speaker 2>statute which dates back over two hundred years. Historically, federal

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<v Speaker 2>officials have occasionally been subject to harassment, interference, or even

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<v Speaker 2>arrest by state officials during periods of tension between federal

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<v Speaker 2>and state governments, going back to the Civil War, for example.

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<v Speaker 2>So we have seen defendants rely on this two hundred

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<v Speaker 2>year old statute to try to prevent federal officials from

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<v Speaker 2>being stymied and carrying out their duties. It was a

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<v Speaker 2>mechanism that was originally created to combat state court lawsuits

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<v Speaker 2>that were filed against customs officers who are enforcing a

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<v Speaker 2>trade embargo against England during the War of eighteen twelve.

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<v Speaker 2>It really is trying to address a case where federal

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<v Speaker 2>officials are merely doing their job and for some reason,

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<v Speaker 2>state prosecutors and state government is trying to interfere with

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<v Speaker 2>them conducting their official duties. It doesn't prevent the prosecution

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<v Speaker 2>from moving forward, but it does move it to federal court,

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<v Speaker 2>where presumably they will get a fair hearing before a

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<v Speaker 2>federal judge rather than a state judge. That's a historical

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<v Speaker 2>basis for that. It doesn't really apply much today in

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<v Speaker 2>terms of what it was originally intended for, but it's

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<v Speaker 2>still available to defendants and if they do meet the criteria,

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<v Speaker 2>they can be cases can be moved to federal court.

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<v Speaker 1>Now, one of the defendants, Kenneth Chesbro, asked for a

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<v Speaker 1>speedy trial. The DA Fanny Willis, said okay, and the

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<v Speaker 1>judge set in October twenty third trial date just for

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<v Speaker 1>Chesbrow at this point, although Willis wants them all tried

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<v Speaker 1>on that date. By the way, Chesbro is a lawyer

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<v Speaker 1>accused of being sort of the mastermind behind the fake

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<v Speaker 1>elector scheme. What do you think about this defense strategy?

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<v Speaker 1>The trial date is just two months away.

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<v Speaker 2>Generally speaking, the defense does have a right to a

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<v Speaker 2>speedy trial. That's basically staying to prosecutors. Once you decide

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<v Speaker 2>to indict somebody, you can't drag this case out. You're

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<v Speaker 2>the ones that decided to bring the charges. You're in

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<v Speaker 2>control of the timing of when that indictment would be brought.

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<v Speaker 2>So when you, whoever the prosecutor is, decide to bring

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<v Speaker 2>that case, you better be ready to take it to trial,

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<v Speaker 2>and the defense can hold your feet to the fire

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<v Speaker 2>and ask for a speedy trial. As a practical matter,

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<v Speaker 2>Usually the defense wants to drag the case out and

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<v Speaker 2>delayed as long as possible. What we're seeing here is

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<v Speaker 2>a split in the tactics used by these defendants where

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<v Speaker 2>you have a defendants asking for the speedy trial, perhaps

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<v Speaker 2>thinking that the prosecution is not really ready to try

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<v Speaker 2>this case and they could tax them flat footed if

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<v Speaker 2>they demand this case go to trial as soon as possible.

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<v Speaker 2>But you have other defendants who want to try to

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<v Speaker 2>drag it out, and ultimately you'll be up to the

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<v Speaker 2>judge to try to make that decision. Another possibility that

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<v Speaker 2>we might see raised by some of these defendants is

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<v Speaker 2>an argument for severance, which is basically, let's break this

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<v Speaker 2>case up into two trials, perhaps even more, because the

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<v Speaker 2>defense ultimately has to have their rights protected, and you

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<v Speaker 2>have some defendants who want the speedy trial and others

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<v Speaker 2>who want the case delayed in order to better prepare

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<v Speaker 2>their defense. They might think by having this case tried

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<v Speaker 2>multiple times, it will give an advantage to the defense.

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<v Speaker 1>Trump's lawyer has filed a request to sever Cheesbro from

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<v Speaker 1>the case because of his speedy trial request. I've been

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<v Speaker 1>thinking about what would happen if the cases were severed,

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<v Speaker 1>So you'd have to have a lot of the same

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<v Speaker 1>witnesses testifying twice the defense might be able to catch

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<v Speaker 1>them in inconsistencies. And also does it give the defense

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<v Speaker 1>a preview of the prosecution's witnesses to a large extent.

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<v Speaker 2>Oh, sure, it'd be a huge advantage to the defense

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<v Speaker 2>were this case to be severed. I don't think a

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<v Speaker 2>judge is going to be inclined to do it, but

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<v Speaker 2>sometimes that does happen. There's something called prejudicial sillover. If

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<v Speaker 2>the defendants can argue that in trying the case together,

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<v Speaker 2>you know the jury will simply lump them all together

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<v Speaker 2>and not actually weigh the evidence against each defendant. And

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<v Speaker 2>there could be other reasons why they believe that the

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<v Speaker 2>trials should be done separately. And if it does happen,

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<v Speaker 2>and it doesn't happen a lot, but it does happen

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<v Speaker 2>in certain cases, it does give the defense in the

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<v Speaker 2>later cases a huge advantage because the defense then has

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<v Speaker 2>a complete preview of the prostitution's case. And even more importantly,

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<v Speaker 2>you have key witnesses who have already testified under oaths,

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<v Speaker 2>and now the defense knows exactly what they're going to

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<v Speaker 2>say and can use their prior testimony at the earlier

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<v Speaker 2>trial to try to trip them up. In a later

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<v Speaker 2>trial if there are any inconsistencies in their testimony in

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<v Speaker 2>the later trial as compared to the first trial.

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<v Speaker 1>We expect that some defendants are going to plead, so

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<v Speaker 1>it'll be less than nineteen defendants. But how could you

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<v Speaker 1>even try let's say, twelve defendants or thirteen defendant How

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<v Speaker 1>could you try that many in one trial.

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<v Speaker 2>Well, when I was a federal prosecutor, I did organize

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<v Speaker 2>crime cases, and we did have cases where there were

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<v Speaker 2>a large number of defendants. But as you say, many

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<v Speaker 2>times there are defendants who plead guilty before the trial

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<v Speaker 2>and you don't wind up with nineteen defendants going to trial.

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<v Speaker 2>That is a bit of an unwieldy number. Just picture

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<v Speaker 2>a courtroom with nineteen defendants and all the lawyers that

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<v Speaker 2>are representing those defendants. That is a bit of a

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<v Speaker 2>circus and is something that would be difficult for a

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<v Speaker 2>judge to control. It also makes the case very unwieldy

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<v Speaker 2>because you've got nineteen defense lawyers cross examining witnesses, and

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<v Speaker 2>in some cases you can have inconsistent defenses. And that's

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<v Speaker 2>why the defense lawyers may try to sever these cases

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<v Speaker 2>and say that it will be unfair to their clients

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<v Speaker 2>if they are tried. Along with some of the other defendants, We've.

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<v Speaker 1>Seen Donald Trump shake up his legal teams over and

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<v Speaker 1>over again. Here he switched lawyers just before his booking

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<v Speaker 1>in Atlanta. He added Steve Sadau, a well known veteran

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<v Speaker 1>Georgia criminal defense attorney with high profile clients. But suppose

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<v Speaker 1>he tries to switch lawyers closer to trial.

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<v Speaker 2>Well, a defendant has the right to choose their lawyer

0:12:44.880 --> 0:12:47.600
<v Speaker 2>to represent them in a trial, and the judge will

0:12:47.640 --> 0:12:51.720
<v Speaker 2>allow a defendant to change lawyers even midstream in the

0:12:51.720 --> 0:12:54.360
<v Speaker 2>middle of a case. What they will not allow the

0:12:54.400 --> 0:12:57.880
<v Speaker 2>defense to do is use as an excuse to unduly

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<v Speaker 2>delay the trial. So sometimes you see a change in

0:13:01.600 --> 0:13:04.400
<v Speaker 2>lawyer a week or two before a trial, with the

0:13:04.480 --> 0:13:07.720
<v Speaker 2>new lawyer coming in saying, Judge, I'm new to the case.

0:13:07.800 --> 0:13:09.760
<v Speaker 2>I'm going to need three months to get ready to

0:13:09.760 --> 0:13:12.839
<v Speaker 2>defend this case. Generally judges are going to be very

0:13:12.880 --> 0:13:16.360
<v Speaker 2>frustrated with that. They may give some additional time, not

0:13:16.480 --> 0:13:19.560
<v Speaker 2>all additional time, or sometimes they stay to the defense

0:13:19.640 --> 0:13:22.040
<v Speaker 2>lawyer who's in the case and the one who's trying

0:13:22.080 --> 0:13:24.480
<v Speaker 2>to come in. I'm not going to let the existing

0:13:24.559 --> 0:13:27.120
<v Speaker 2>lawyer out of the case unless the new lawyer is

0:13:27.320 --> 0:13:30.760
<v Speaker 2>prepared to try the case according to the existing schedule.

0:13:30.960 --> 0:13:35.640
<v Speaker 2>But it does become tricky because if the relationship between

0:13:35.640 --> 0:13:39.440
<v Speaker 2>a lawyer and a client completely breaks down, it is

0:13:39.520 --> 0:13:42.520
<v Speaker 2>difficult for a judge to insist that a defendant go

0:13:42.600 --> 0:13:45.319
<v Speaker 2>to trial with that lawyer. That's the case where a

0:13:45.400 --> 0:13:48.360
<v Speaker 2>judge runs the risk of having an entire trial which

0:13:48.440 --> 0:13:52.160
<v Speaker 2>ultimately gets overturned on appeal, where a defendant can argue

0:13:52.320 --> 0:13:55.040
<v Speaker 2>that they did not have an agreement with their lawyer

0:13:55.120 --> 0:13:59.280
<v Speaker 2>about the strategy, and there was basically a situation where

0:13:59.320 --> 0:14:02.719
<v Speaker 2>the relationship had broken down to sich a point that

0:14:02.760 --> 0:14:06.360
<v Speaker 2>the lawyer does not believe they can effectively represent the defendant.

0:14:06.600 --> 0:14:08.600
<v Speaker 2>So as much as a judge may try to keep

0:14:08.640 --> 0:14:11.719
<v Speaker 2>a case on track, twitching lawyers is something that a

0:14:11.840 --> 0:14:15.880
<v Speaker 2>judge will ultimately likely allow a defendant to do, but

0:14:16.000 --> 0:14:17.560
<v Speaker 2>they will try to do in the stix a way

0:14:17.600 --> 0:14:20.920
<v Speaker 2>that doesn't allow the defense to unreasonably delay the start

0:14:20.920 --> 0:14:21.480
<v Speaker 2>of the trial.

0:14:21.880 --> 0:14:24.960
<v Speaker 1>Thanks so much, Bob. That's Robert Mints a partner maccarter

0:14:25.040 --> 0:14:27.400
<v Speaker 1>in English, and that's it for this edition of The

0:14:27.440 --> 0:14:30.720
<v Speaker 1>Bloomberg Law Show. Remember you can always get the latest

0:14:30.760 --> 0:14:34.040
<v Speaker 1>legal news by listening to our Bloomberg Law podcast. You

0:14:34.080 --> 0:14:37.920
<v Speaker 1>can find them on Apple Podcasts, Spotify, and at www

0:14:38.040 --> 0:14:42.800
<v Speaker 1>dot bloomberg dot com slash podcast Slash Law. I'm June

0:14:42.840 --> 0:14:44.600
<v Speaker 1>Grosso and you're listening to Bloomberg