Fulton County Judge Scott McAfeee on Thursday ended the effort by prosecutors to try all 19 defendants in the election subversion case together, and held an at-times heated hearing on motions related to the two people who will go on trial next month.
McAfee’s decision means former President Donald Trump likely wouldn’t face trial until next year, when his legal and political calendar is already remarkably packed.
Here’s what to know:
Trump’s trial delayed
McAfee, in severing the trial of 17 people from Chesebro and Powell, handed a defeat to Fulton County District Attorney Fani Willis who had argued she was ready to begin next month.
Prosecutors allege that all 19 people were part of a conspiracy to overturn 2020 Trump’s election loss to Joe Biden. All have pleaded not guilty.
Thursday’s order is a victory for Trump and his fellow co-defendants who did not want to go to trial this October. Moreover, a new date was not set.
The schedule laid out by the judge only cemented some of the steps in the pre-trial process, setting up the possibility that the trial itself does not happen until well into 2024, or even later. Trump’s legal calendar first half of next year is already clogged with plans for trials in the other criminal cases he faces, and he is juggling those proceedings with his 2024 presidential run.
Defendants to get names of 30 unindicted co-conspirators
Prosecutors provided the names of the 30 unindicted co-conspirators in the election subversion case to Chesebro and Powell and McAfee said he would give defendants access to some witness transcripts from the special grand jury that recommended that charges be brought.
McAffee, at a hearing Thursday, also indicated that defense counsel has the right to talk to grand jurors as they are seeking, but stressed that those conversations would need to be voluntary and limited in scope.
The names of the co-conspirators weren’t made public as part of the hearing. CNN has previously identified many of the 30 co-conspirators, who aided the efforts to overturn the 2020 election but aren’t facing any charges.
Jury selection should only take 2 weeks, judge says
Chesebro and Powell are having their trial first because they invoked Georgia’s speedy trial law, while the other defendants, including Trump, did not do so.
McAfee said Thursday he hopes to have a jury selected and sworn in by November 5.
“My initial review of the speedy trial case law is that it’s somewhat uncertain of when a trial commences,” McAfee said. “So, we’re going to be making the attempt to have this jury sworn by the deadline of November 5. Maybe that means a weekend or two is involved.”
Prosecutors who brought the case have previously estimated that it would take four months for them to hold a trial – not including jury selection. McAfee has said he thinks it could take as long as eight months for a trial.
McAfee also said conversations were underway between the Fulton County Sheriff’s Office and court administrators about logistics for jury selection in the high-profile case.
Defense attorneys likely to get witness transcripts
The hearing offered a preview of the looming procedural fights that are likely before the trial gets underway in the coming weeks.
Scott Grubman, an attorney for Chesebro, confirmed following Thursday’s hearing that he received from prosecutors a hard drive with discovery evidence for the case, which prosecutors said was eight terabytes.
The judge will be allowing the defense teams access to transcripts of witness testimony before the special grand jury, if the witness is called to testify at trial. He is still considering whether the defense teams should receive additional information from the special grand jury used to investigate the 2020 election aftermath.
The special grand jury proceedings took place before a regular grand jury met and handed up the indictment.
Fulton County prosecutors want to keep the information – specifically transcripts of the witness testimony before the special grand jury – secret.
Prosecutor Nathan Wade distinguished the special grand jury from the grand jury that approved the indictment, because the special grand jury has an investigative function and not a charging function. The integrity of special grand jury investigations could suffer, Wade said, if those witnesses knew their testimony would be shared with defense teams later.
But Manny Arora, Chesebro’s defense attorney, says grand jury proceedings are “one-way traffic” under the control of the prosecution team, which is why he is arguing to access transcripts from the dozens of witnesses who testified to the special grand jury. Few witnesses were called to a regular grand jury following the special grand jury issuing its final report, and the grand jury that indicted Trump and 18 others heavily relied on the special grand jury’s work.
Without the judge’s intervention, the defense team would only have access to the report itself and the grand jury activity after the special grand jurors finished their work, as well as the transcripts of witnesses who testified to the special grand jury and are lined up to testify in the prosecutors’ case at the trials of Chesebro and Powell.
Judge says defense has right to talk to grand jurors
McAfee appeared receptive to the motion from defense attorneys to speak to the grand jurors who handed up the charges in the election subversion case, but he stressed that the conversations would have to be limited in scope and voluntary.
“My initial reaction, just to lay it out there, I think you have the right to speak of the grand jurors. How that happens, I think we can discuss and craft,” McAfee said.
McAfee made it clear, however, that defense attorneys would be constrained in what they could ask the grand jurors who handed up the charges in the Fulton County election subversion case, and that any conversation with the grand jurors would be on a voluntary basis.
“Really what it all is coming down to, it seems to me, is what are they allowed to be asked,” McAfee said, adding that “deliberations are a hard stop” and cannot be discussed.
The judge added that he wanted defense attorneys to submit to him what questions they wanted to ask the grand jurors.
Defense attorneys have been pushing to speak with members of the grand jury, saying they had questions about witness testimony and grand jury processes. Grubman said during the hearing that he wished to speak “very serious questions” over whether the grand jury “was independent.”
“There is no grand jury secrecy in the state of Georgia,” Grubman said.
Fulton County prosecutors responded with deep concern over grand jurors’ security and said that the grand jurors have already expressed fears over their safety.
“They’ve contacted our office because of safety concerns,” prosecutor Daysha Young said. “We’ve had to contact law enforcement agencies all over Fulton County to make sure that these jurors are safe. So I think one consideration record also needs to make in allowing this is the safety of these grand jurors and their concerns that have already been voiced.”
Powell’s defense team seeks messages they believe could exonerate her
Powell’s team said on Thursday in court they believe the alleged breach of voting machines in Coffee County, Georgia, after the 2020 election was authorized, and that evidence related to it could exonerate the former Trump attorney. But they haven’t obtained that evidence yet.
“I need the stuff that proves that she should not be in this case,” Powell’s attorney, Brian Rafferty, told a judge in Georgia on Thursday.
The text messages and other communications about Trump attorneys’ ability to access Coffee County machines appear to be shaping up as her primary defense against the Georgia charges.
Rafferty specifically pointed to text messages CNN previously made public, indicating that a former Coffee County elections official wrote an invitation to lawyers for Trump and a group accused of working at Powell’s direction. One of the messages, according to CNN’s report, interpreted the invitation as local authorities granting access in writing to Coffee County’s elections systems, at the time that lawyers for Trump were trying to unearth evidence of widespread fraud, which they didn’t find.
McAfee hasn’t weighed in on the legality of whether Powell should have been charged, and prosecutors have begun turning evidence they’ve collected over to Powell’s team on Thursday.
Previously, her lawyers have argued vigorously that Powell was “not the driving force” behind the breach of voting machines in Coffee County.
The indictment accuses Powell of helping initiate the Coffee County breach as part of a legal agreement with a firm that eventually accessed and copied voting systems in Coffee County. Powell initially contracted the firm to examine voting equipment in Michigan.
This story has been updated with additional developments.
CNN’s Zachary Cohen, Sara Murray, Hannah Rabinowitz, Holmes Lybrand, Nick Valencia and Jason Morris contributed to this report.