Joint Trial of Sidney Powell and Kenneth Chesebro Illustrates the Fuzziness of Georgia's RICO Law

The two alleged racketeers complain that irrelevant evidence concerning distinct, uncoordinated conduct aimed at keeping Donald Trump in office will impair their defense.

A Georgia judge this week set a trial date for Sidney Powell and Kenneth Chesebro, two of the 19 defendants who are charged with participating in a racketeering conspiracy aimed at keeping Donald Trump in power after the 2020 presidential election. Unless other defendants succeed in moving the case to federal court, Powell and Chesebro will be tried together in Fulton County beginning on October 23, a month and a half from now.

Powell, a conspiracy theorist who was a member of the "elite strike force team" that aimed to reverse the outcome of the 2020 election, and Chesebro, another attorney who advised the Trump campaign, both invoked the right to a speedy trial under Georgia law. But neither wanted to be tried along with the other. They argued that such a trial would entail copious evidence concerning conduct they had nothing to do with, creating confusion for jurors charged with determining each defendant's guilt or innocence.

After a hearing on Wednesday, Fulton County Superior Court Judge Scott McAfee nevertheless concluded that prosecuting Powell and Chesebro together would not impair their right to a fair trial. But the arguments McAfee considered highlight the challenges that Fulton County District Attorney Fani Willis will face as she tries to prove the charges laid out in a sprawling racketeering indictment that includes 41 counts, many involving multiple defendants, and 161 acts in furtherance of the alleged conspiracy.

Willis says she wants to try Trump and all 18 of his co-defendants together, which her office estimates would take about four months, not including jury selection, and involve testimony by around 150 prosecution witnesses. McAfee said he was "highly skeptical" of that plan, and there are good reasons to doubt that Willis can manage the feat she has in mind. The objections that Powell and Chesebro raised in arguing that they should each be tried separately suggest how complicated and perplexing such a mass trial would be.

In addition to violating Georgia's Racketeer Influenced and Corrupt Organizations Act, Powell is charged with six felonies: two counts of conspiracy to commit election fraud, one count of conspiracy to commit computer theft, one count of conspiracy to commit computer trespass, one count of conspiracy to commit computer invasion of privacy, and one count of conspiracy to defraud the state. All of those charges stem from an attempt to verify her fantastical claim that deliberately corrupted software used in machines supplied by Dominion Voting Systems switched Trump votes to Biden votes in Georgia and other states.

On December 6, 2020, according to the indictment, Powell contracted with SullivanStrickler, a Fulton County forensic data firm, "for the performance of computer forensic collections and analytics on Dominion Voting Systems equipment in Michigan and elsewhere." Two weeks later, the indictment says, Powell sent SullivanStrickler an email asking it to share "a copy of all data" obtained from Dominion equipment in Michigan with three unindicted and unnamed co-conspirators.

On January 7, SullivanStrickler employees copied data from Dominion machines at the Coffee County Board of Elections and Registration Office. This is the incident that inspired the felony charges against Powell.

Powell's lawyer, Brian Rafferty, says she did not ask SullivanStrickler to investigate Dominion machines in Coffee County and "did not plan or organize the Coffee County trip." But The Atlanta Journal-Constitution reports that an invoice shows Powell's nonprofit organization paid SullivanStrickler $26,000 "for computer analysts to copy Georgia's statewide voting system software in Coffee County on Jan. 7, 2021." And that morning, a SullivanStrickler executive told Powell, "We are on our way to Coffee County, Ga., to collect what we can from the election/voting machines and systems." In a recorded March 7, 2021, phone call, Scott Hall, a Georgia bail bondsman who participated in the Coffee County visit and is one of the 19 defendants named in the indictment, said "we scanned every freaking ballot" and "imaged all the hard drives."

In any case, Rafferty says, "a unanimous Coffee County Election Board gave permission for the forensic inspection, and nothing was stolen." That jibes with the account that Hall gave in that phone conversation. "We basically had the entire elections committee there," he said, "and they said, 'We give you permission.'"

Yet six weeks after the SullivanStrickler visit, the Coffee County election board fired elections director Misty Hampton, who is one of the 19 defendants named in the Georgia indictment. Georgia Secretary of State Brad Raffensperger said Hampton lied to his investigators, concealing the fact that she had shared computer passwords with SullivanStrickler's technicians. Like Powell, Hampton is charged with conspiracy to commit election fraud, conspiracy to commit computer theft, conspiracy to commit computer trespass, conspiracy to commit computer invasion of privacy, and conspiracy to defraud the state.

Meanwhile, SullivanStrickler, which is not named as a defendant in the indictment, says it was only following instructions from "licensed, practicing attorneys" and never imagined it was doing anything illegal. According to an August 2022 statement from the company's lawyers, it is "categorically false" that SullivanStrickler "illegally 'breached'" voting equipment in Coffee County. The company "has never been part of a 'pro-Trump team' or any 'team' whose goal is to undermine our democracy," its lawyers said, describing SullivanStrickler as a "politically agnostic" firm that was paid to "preserve and forensically copy the Dominion voting machines used in the 2020 election." Last September, SullivanStrickler added that "our firm and our employees are only witnesses in this matter."

Witnesses to what, you might wonder, since SullivanStrickler insists everything its employees did that day was on the up-and-up. The fact that neither the company nor its employees are facing charges in connection with the data copying suggests that Willis did not view their conduct as criminal. But if so, why does Powell's connection to that supposedly authorized inspection justify multiple felony charges?

That's a question Powell's lawyers are sure to raise at her trial. But they complain that trying her together with Chesebro will interfere with her defense because the same jury deciding her fate will also be hearing lots of irrelevant evidence concerning his alleged crimes.

In addition to racketeering, Chesebro is charged with six felonies: conspiracy to commit impersonating a public officer, two counts of conspiracy to commit forgery in the first degree, two counts of conspiracy to submit false statements and writings, and conspiracy to file false documents. All of those charges are related to the "alternate" or "contingent" electors scheme that Chesebro promoted and helped organize. The plan involved presenting Republican candidates for the Electoral College in supposedly contested states, including Georgia, as "duly elected and qualified," contrary to the certified results.

That strategy, Chesebro will argue, was a legitimate way to preserve the Trump campaign's options in the (highly unlikely) event that its lawsuit challenging the election outcome in Georgia proved successful. He will cite the precedent set by the 1960 dispute over whether Richard Nixon or John F. Kennedy had won Hawaii's electoral votes. In that case, Kennedy's "contingent" electors did essentially the same thing that Trump's "contingent" electors in Georgia did.

The main difference is that there was a genuine controversy over the election outcome in Hawaii, where a recount prompted by a Democratic lawsuit ultimately led to recognition of Kennedy's electors. In Georgia, by contrast, there was no serious question about whether Joe Biden had actually won the state. Prosecutors portray Chesebro's efforts in Georgia as a knowingly fraudulent attempt to overturn that outcome.

In rebutting that version of events, Chesebro's lawyers complain, they will be hampered by the simultaneous presentation of the state's case against Powell, which has nothing to do with the "alternate" electors plan. The two cases, they say, are "akin to oil and water"—"wholly separate and impossible to mix (into one conspiracy)." Arguing against a joint trial, The New York Times reports, one of Chesebro's lawyers "raised the possibility that the same jury hearing his client's case would be subjected to weeks, if not months, of testimony about the data breach that he was not involved in."

Conversely, Powell complains that the evidence against Chesebro has nothing to do with the question of whether her arrangement with SullivanStrickler makes her guilty of multiple felonies. Rafferty worries that her defense is "going to get washed away" by all the evidence related to Chesebro's "alternate" electors.

Georgia's highly commodious racketeering law, however, allows prosecutors to treat distinct, uncoordinated acts as part of the same conspiracy. As Willis sees it, even if Powell and Chesebro had little or no contact with each other, and even if their alleged crimes do not overlap at all, they were still participants in the same overarching "enterprise" aimed at nullifying Biden's victory. "The conspiracy evolved," Deputy District Attorney Will Wooten told McAfee. "One thing didn't work, so we move on to the next thing. That thing didn't work, so we move on to the next thing."

That we is doing a lot of work in those sentences. Powell and Chesebro separately did different things, prosecutors say, but they had the same goal in mind, which is enough to subsume them under the hive mind of the "enterprise." That is why Willis thinks it makes perfect sense to try all 19 alleged racketeers together, a proceeding that inevitably would blur distinctions that are essential in assessing the culpability of each defendant.