Below is my column in The Messenger on the early struggle of Fulton County District Attorney Fani Willis to preserve her strategy of holding a mass 19-person trial over the 2020 election case involving former president Donald Trump. Not only are defendants scattering, but some are seeking to go to federal court where the trial would not likely be televised, as the Georgia prosecutors reportedly want. The hearing on the removal gave a glimpse into the case. Regardless of the ruling of the court, it is likely to be appealed.
Here is the column:
Fulton County District Attorney Fani Willis appears in federal court in Atlanta today to fight for the ability to try her massive racketeering case against former President Donald Trump and 18 other defendants in a state court in Fulton County, Ga. Trump’s final White House chief of staff, Mark Meadows, has filed to remove the case to federal court due to his prior federal office and duties. There are good arguments on both sides of the motion.
However, more is at stake for Willis than a change of courtrooms.
Willis used a sweeping racketeering theory to snare Trump and others in an alleged conspiracy that is the aggregation of more than 160 insular acts, ranging from tweets to speeches to specific actions. Some of these individuals face tough charges involving alleged access to voting machines and other specific crimes. However, Willis is trying to hold together a case to try them en masse and in state court. As her defendants try to scatter, Willis will be running between federal and state courts to herd them back into one collective trial.
Trying 19 people in one case is never easy. It is like a potato-sack race with 38 legs and everyone moving at different paces. While linked in this alleged conspiracy, these defendants are loosely grouped together. Large racketeering cases are nothing new, but they generally are linked by more sturdy connections, such as an organized crime syndicate, or other more conventional criminal elements.
For some of the defendants, the framing of the case may be a greater threat than the alleged crimes. Collective prosecution can encourage a jury to mete out collective punishment. Willis clearly wants to paint all of the defendants with the same brush. That is more difficult if they are tried separately or in small groups.
Willis already faces two challenges.
First is the desire of defendants like Meadows and Trump to remove the case to federal court. Here, the political character of their alleged actions works in Willis’ favor. In his brief, Meadows concedes that “all the substantive allegations in the Indictment concern unquestionably political activity.” That raises an obvious challenge that the Hatch Act bars many political activities by federal officials and thus moves them outside of the official duties of figures like Meadows. However, White House chiefs of staff have always addressed political issues, from Capitol Hill to state legislatures. For a person with that portfolio, what constitutes a campaign matter and what constitutes an official matter can become blurred. Moreover, Willis’s inclusion of a wide array of actions and statements makes it more likely that some arguably official duties may be raised at trial.
Second, some defendants are not keen on being tried in gross. They are willing to give up the time needed to prepare a defense in exchange for putting themselves on a different trial schedule. Defendants like attorneys Sidney Powell and Kenneth Chesebro have demanded their constitutional right to a speedy trial, and Willis has proposed an October date. That is roughly five months before the proposed date for the mass trial.
The combination of defendants seeking speedy trials and those seeking removal to federal court could make Willis’s original strategy unwieldy, if not unworkable.
The division of the cases also could make the prosecution more fair for the defendants, since some of them could be prejudiced by a mass trial. Many are the type of low-hanging-fruit defendants that prosecutors often charge in the hope that they will cooperate to avoid financial ruin or potential incarceration. For example, Stephen Cliffgard Lee, Harrison William Prescott Floyd and Trevian C. Kutti are charged with attempting to influence Fulton County election worker Ruby Freeman’s testimony before the grand jury; Lee is specifically charged with traveling to Georgia and knocking on Freeman’s door in an attempt to influence her testimony. Likewise, other defendants like Scott Graham Hall are charged with seeking illegal access to voting machines.
The indictment does not establish particularly strong connections to such individual actions as part of this conspiracy. Yet trying them together allows the prosecution to give them a more sinister, conspiratorial patina.
Willis also faces the reality that, even if the federal district judge is sympathetic, the removal motions will need to be reviewed on appeal. They involve challenging questions over the scope of not just laws like the Hatch Act but the duties of federal officials like Meadows. That could place those cases on a different trajectory for months.
The trial courts will have to render decisions on major constitutional challenges, including free-speech claims, before trial. However, defendants are generally forced to go to trial before they receive a full appellate review of such questions; since they have not been convicted, it is often viewed as premature to render an appellate decision. These are certainly unprecedented cases that could prompt review, but the defendants cannot count on such an intervention. Yet, while the appellate courts may allow the criminal cases to proceed to verdicts, these severance and removal motions could result in more narrow reviews on the appellate level.
Of course, Willis is not the only person with a challenging calendar. It remains controversial that Willis waited more than two years to bring this prosecution just before the next presidential election. Trump potentially faces four major prosecutions in the District of Columbia, Florida, Georgia and New York before the 2024 election. Some trials are scheduled for just before major Republican Party primaries. In Washington, U.S. District Judge Tanya Chutkan has already indicated that the court will not treat Trump differently because he is running for office.
However, there is a separate due process question raised by the daisy-chained trial schedule. Even without a national political campaign, any defendant would be hard-pressed to prepare for all of these trials before the general election — and that is not even counting the civil cases pending against him. In one federal case alone, the government has 11 million pages of evidence that will have to be shown to the defense team.
It is often fun to debate whether someone would rather fight one horse-sized duck or a hundred duck-sized horses. However, the almost 100 counts now facing Trump in four different criminal cases are all horse-sized charges, and he has comparatively little time to fight them all in rapid succession.
Trump and his co-defendants must stand trial for these allegations, but criminal cases are supposed to be tests of evidence, not of endurance or exposure. Something has to give in this schedule — not in the interest of Trump, but in the interest of justice.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.