Georgia judge declines to toss Chesebro, Powell charges days before trial  

A Georgia judge Tuesday rejected a variety of attempts by Trump-aligned lawyers Kenneth Chesebro and Sidney Powell to get their 2020 election interference charges thrown out. 

The ruling from Fulton County Superior Court Judge Scott McAfee — which found that the defendants did not establish a “defect in the substance or form of the indictment” — removes the bulk of roadblocks that remained ahead of Chesebro and Powell’s joint trial. Jury selection is scheduled to begin Friday. 

Chesebro and Powell each face seven charges stemming from different plots that Fulton County District Attorney Fani Willis’s (D) office alleges were part of a broader criminal enterprise to keep Donald Trump in power after he lost the 2020 election. They’re charged alongside 17 other defendants, including the former president. 

The pair have both pleaded not guilty, and they still have a pending attempt to get the indictment dismissed under the federal Constitution.

Their trial is expected to last up to five months.   

McAfee’s decision rejects various demurrers and motions to quash — both legal mechanisms for defendants to try to get portions or all of their charges tossed before going to trial — filed by Powell and Chesebro in recent weeks. 

The judge’s 18-page ruling said some of the defendants’ motions asked him to go beyond his authority and should instead be left to a jury. 

“[A] demurrer cannot cross the line and transform itself into a ‘speaking demurrer,’” McAfee wrote. “A trial court has no authority, absent stipulation from both parties, to add facts not appearing on the face of the indictment and wade into a pretrial consideration of the evidence.” 

Jury selection begins Friday, and the trial itself is scheduled to begin Oct. 23. 

“While we are obviously disappointed with the rulings, we are ready for trial,” said Scott Grubman, Chesebro’s attorney.

The Hill has reached out to Powell’s attorney for comment.

The judge held two hearings last week to consider some of the motions, while he didn’t hold a proceeding for others, writing that it was “unnecessary.”  

During one hearing last week, defense attorneys for Chesebro and Powell argued specifically in favor of eliminating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act charges all the defendants face.  

Chesebro attorney Manny Arora said that to bring RICO charges, evidence of financial gain or physical threat or harm must be present. The state district attorney’s office’s case did not meet that threshold, he said.

“We are not trying to narrow the scope of the RICO statute, and we’re not saying it’s unconstitutional; we’re saying it’s unconstitutional as applied, because they’re not following the rules,” Arora said of Fulton County prosecutors.  

“They’re coming up with novel theories to indict people,” he added. 

Special prosecutor John Floyd, a state RICO expert, said such a threshold is not required and cited a legislative amendment to the state’s RICO statute he said was enacted to prevent arguments like Arora’s.

But, even if McAfee were to determine that such a threshold was required, the potential for a second Trump presidency and threats against Fulton County election worker Ruby Freeman fulfill those requirements, Floyd argued.  

In the order Tuesday, McAfee sided with prosecutors after finding that the amendment “expressly loosened the applicability” of the law.  

“At a minimum, 120 elected legislators and the assent of a Governor were required to pass the amendment, and determining their collective intent is a pointless exercise,” he wrote. “This is not a novel theory of interpretation according to our Supreme Court.” 

The judge furthered that point by citing other case law opining that attempts to discern legislative intent beyond the actual text is “as practical and productive as attempting to nail Jell-O to the wall.” 

McAfee’s decision likely clears the way for Chesebro and Powell to face trial starting next week. Their cases were expedited after they invoked their right to a speedy trial.  

The other defendants — minus Scott Hall, a co-defendant who pleaded guilty last month — waived that right and will be tried at an undetermined later date. 

—Updated at 8:27 p.m.