Donald Trump, Sidney Powell (Fulton County Sheriff’s Office)
Attorneys Sidney Powell and Ken Chesebro are heading towards jury selection in the Fulton County DA’s racketeering (RICO) prosecution after the presiding judge on Tuesday rejected their attempts to toss out their indictments.
Fulton County Superior Court Judge Scott McAfee, in an 18-page order, ruled that Powell and Chesebro’s RICO trial for their alleged roles in trying to overturn the 2020 election in Georgia, will move forward, as their assertions that “every count with which they are charged is fatally defective” were ultimately unpersuasive.
“After reviewing the law, record, and parties’ arguments, and finding that each challenged count is facially sound as alleged, the motions are DENIED,” McAfee began.
Notably, former President Donald Trump, the top defendant in the RICO case, previously adopted Powell’s now-denied general demurrer, specifically Part III which asserted the prosecution “must be dismissed for violation of fundamental constitutional principles of due process and fair warning.”
The Powell general demurrer argued that the Georgia RICO statute was unconstitutionally vague as applied by Fulton County DA Fani Willis (D).
“If the Georgia RICO statute reaches the conduct alleged here, then it is unconstitutionally vague. Already, its application has necessarily been decided on a case-by-case basis. It has enabled the District Attorney’s office to make life-altering choices of those to indict — when thousands of people fall within the prosecutors’ definition of RICO here,” the filing said. “The State has even indicted First Amendment protected speech and conduct.”
Powell’s motion further said that the “only way the Georgia RICO statute can survive constitutional scrutiny is if the Court reads into it an element of criminal financial gain for the individual and enterprise, and the economic or physical threat or injury.”
The trial judge first rejected the argument that that there had to be “an element of ‘pecuniary gain or economic or physical threat or injury”” in order to bring the indictment. Before denying the general demurrer, McAfee signaled that the “‘as applied’ First Amendment argument” raised by Powell “will be addressed through a separate order.”
The judge also denied a general demurrer filed by Ken Chesebro, the lawyer behind a draft legal memo which theorized the election could be overturned on Jan. 6. The Chesebro demurrer was adopted by Trump as well, particularly as to the argument that the top charge “fails to allege ‘open-ended’ and/or ‘closed-ended’ continuity.”
“The fact remains that our Supreme Court has provided a binding definition of a ‘pattern of racketeering activity’ that does not include continuity: ‘proof of two but separate related acts is sufficient,’” the judge wrote. “Defendants have not sufficiently shown how this precedent can be disregarded, or why Georgia RICO requires an additional element. This motion must be DENIED.”
Fulton County Superior Court Judge Scott McAfee (Fox 5 Atlanta/YouTube screengrab), Ken Chesebro (Fulton County Sheriff’s Office)
Like Powell, Chesebro attempted to make the case that the RICO indictment should be thrown out “because there is no allegation of pecuniary gain or economic or physical injury,” but he also claimed the indictment “fail[ed] to allege a nexus between the enterprise and the racketeering activity as required to survive a demurrer.”
Judge McAfee ruled, however, that the Kimbrough v. State case cited by Chesebro was not on point.
“The Defendant also claims Count 1 must be dismissed due to the State’s failure to allege a nexus between the enterprise and the pattern of racketeering pursuant to Kimbrough v. State, 300 Ga. 878, 884 (2017),” the judge said. “But the deficient indictment in Kimbrough, which completely failed to allege any connection or nexus at all, is extensively distinguished from the indictment here. This motion is DENIED.”
Altogether, Powell and Chesebro failed to show that the RICO indictments they face are defective, whether in form or substance.
“The demurrers filed and adopted by Defendants Powell and Chesebro challenging Counts 1, 9, 11, 13, 15, 17, 19, and 32-37 have not established a defect in the substance or form of the indictment and are DENIED,” the judge concluded.
To be clear, McAfee denied the motions as to Powell and Chesebro, not Trump — but that the judge denied them is legally significant and appears to be a sign of things to come.
Jury selection is set to begin Friday for Powell and Chesebro, whose cases were severed from their co-defendants after they invoked their rights to a speedy trial.
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