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