Fulton County Superior Court Judge Scott McAfee (Fox 5 Atlanta/YouTube screengrab), Ken Chesebro (Fulton County Sheriff’s Office)
The Georgia judge presiding over the sprawling racketeering (RICO) prosecution of lawyer Ken Chesebro and 18 others, including former President Donald Trump, on Friday rejected Chesebro’s assertions that he is immune from prosecution and that emails seized from Microsoft shouldn’t be allowed into evidence.
On Sept. 21, Chesebro filed a motion to suppress email evidence under the theory that the warrant was “defective,” in that a special master — a neutral judge — was never appointed to sift through the materials for communications potentially covered by attorney-client privilege.
In addition, Chesebro said that the search warrant the Fulton County District Attorney’s office served on Microsoft violated the Official Code of Georgia Annotated (OCGA) § 17-5-32(c), a statute that outlines rules for issuing a search warrant “for any documentary evidence in the possession or custody of an attorney who is not a criminal suspect.”
Fulton County Superior Court Judge Scott McAfee rejected both of these arguments in short order on Friday, writing, “After reviewing the motion and assuming the relevant proffered facts to be true, the Court nevertheless finds that the motion fails to raise sufficient questions of law or fact that would require an evidentiary hearing and DENIES the motion.”
McAfee said the key problem for Chesebro is that the “not a criminal suspect” statutory language he was referring to doesn’t apply to his situation, considering that the challenged search warrant’s affidavit “repeatedly refers to the Defendant as a ‘co-conspirator,’ ‘participant,’ ‘intermediary,’ and ‘liaison’ working with several other charged defendants in this case to further a ‘false elector plot’ in violation of several laws.”
McAfee noted that Chesebro argued he wasn’t a suspect because he wasn’t sent a “target letter.”
“Defendant must know better: a target letter is simply an administrative creation of the U.S. Department of Justice,” McAfee said. “Its purpose is to advise a grand jury witness of his or her rights if the witness is a ‘target’ or ‘subject’ of a grand jury investigation.”
“Target letters are not a common feature of Georgia prosecutions, the term does not appear in our appellate precedent, and the existence or absence of such a letter’s delivery has no legal effect,” the judge continued.
Chesebro’s argument that a special master should have been appointed also fell flat.
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“The Defendant also contends certain evidence referenced within the affidavit is privileged and should only have been reviewed by a ‘neutral and detached judge,”” McAfee said. “Defendant has not sufficiently particularized why the attorney-client privilege applies, nor does he contend inclusion of these materials affected the viability of the warrant itself.”
The judge, referring to Chesebro’s analysis of the statute as a “strained reading,” found the warrant “contained sufficient probable cause to classify the Defendant” as a suspect, meaning Chesebro’s motion to suppress “fails to state a legal violation.”
On Tuesday, Fulton County DA Fani Willis (D) responded to Chesebro’s other motion, the one which asserted he is immune from prosecution because he was only working “within his capacity as a lawyer” for former President Donald Trump’s reelection campaign “in researching and finding precedents in order to form a legal opinion which was then supplied to his client.”
Willis’ response to Chesebro’s “justification” defense was essentially this: Tell it to the jury.
The “justification” affirmative defense is something that generally “cannot be raised prior to trial,” Willis argued.
“Affirmative defenses, with limited exceptions concerning statutes that expressly provide for immunity, discussed infra, are determinations of fact to be made by the jury,” the reply continued.
Judge McAfee agreed with Willis.
“The Defendant’s affirmative defense that he simply performed his legal duty to a client may be suitable for a jury charge. But it is irrelevant in the pretrial context of immunity, and this Court declines the invitation to supplant the jury’s role as the factfinder,” the judge said, denying the motion.
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