• Show Notes

Nothing much happened at my first-ever courtroom appearance as a federal prosecutor for the Southern District of New York, many years ago. So little, in fact, that sitting here now I couldn’t tell you the name of the defendant or precisely what business we handled; it was nothing much, scheduling of discovery or motions or some such.

But I distinctly remember this: at the end of the proceeding, the judge asked, “Government, anything more?” It felt like we were done, so I said “No, Your Honor.” The judge raised her eyebrows in a “Don’t you have something to say here?” manner that I now recognize was intended to help along a young pup. I glanced at my supervisor, who pulled me over and whispered, “Move to exclude time.” I had no idea what this meant, and it must have shown. The supervisor repeated, mildly exasperated, “Just ask to exclude time.” I then said just that out loud, with all the understanding of a parrot repeating human sounds. The judge nodded, defense counsel chimed in, “No objection,” the judge granted whatever the hell I had just asked for, and we wrapped up.

So here’s what happened. The Sixth Amendment to the Constitution grants any criminal defendant the right to a “speedy and public trial.” Implementation of that command varies by jurisdiction, and in the federal courts, the Speedy Trial clock provides the defendant the right to trial within 70 days of indictment. But no federal case goes to trial that quickly, or close to it. And that’s because of the little dance that played out at the end of my first court appearance.

This Speedy Trial clock, grounded as it is in our fundamental notions of swift and certain justice, has a pause button. In fact, that’s essentially the only button you’ll ever need to hit as a federal prosecutor. Almost as if by rote, at the end of nearly every court appearance, somebody – often the prosecutor but sometimes the defense lawyer or the judge herself – will seek to “exclude” Speedy Trial time until the next court appearance. Everyone nods and consents, the pause button gets hit, rinse and repeat.

This isn’t a lamentation. There are perfectly valid reasons to stop the Speedy Trial clock, most of them serving the interests of the defendant (who is, after all, the party that holds the right). Typically, the defense lawyer needs time to investigate, serve subpoenas, review discovery, and prepare and litigate motions. Every federal defendant has that right to be tried quickly, but few exercise it. (And even if a defendant did insist on trial within the set number of days, prosecutors still might seek to expand the time frame, and a judge likely would concur.)

But Georgia is different. In its version of the Speedy Trial law, any defendant can insist on trial in the two-month court term when an indictment is filed, or by the end of the next one – which, translated here, means by November. That’s precisely what Kenneth Chesebro and Sidney Powell – two of Donald Trump’s co-defendants in the election interference case brought by Fulton County District Attorney Fani Willis – have requested. This, folks, is a big deal.

I don’t know exactly why Chesebro and Powell are so eager to face a jury, but I can see a few possibilities. Maybe they feel confident they can beat the case. Maybe they want to get it over with, either way, and don’t want it hanging over them. Maybe they think they can catch the DA flat-footed, unprepared to try the case she charged; occasionally, when I was a prosecutor, we’d joke that it’s a good thing no defendant ever actually enforces their Speedy Trial rights, because we’d be screwed – though the two-and-a-half-plus years Willis spent T-crossing and I-dotting before actually charging the case suggest she’s had ample time to get ready. (Note that a defendant can withdraw a request for a Speedy Trial, and that still could happen here for Chesebro and Powell – but let’s assume for now that the status quo prevails.)

Willis didn’t blink, and fired back that she wants to try all 19 defendants before Halloween, starting on October 23, 2023. This was mostly for show; while a defendant certainly can insist on his Speedy Trial rights, a prosecutor can’t realistically force a defendant to trial so quickly in such a sweeping case, against the defendant’s will – at least not without violating his right to fully prepare a defense.

So, in all likelihood, we will see (at least) two separate, successive trials in Georgia: one (or maybe two) for Chesebro and Powell and perhaps other earlybirds, and another one (or more) much later, for the rest of the pack, including Trump.

That is a massive tactical advantage for Trump and the rest who get to go later. Because now the defense teams for Trump and others get to sit back and watch the DA’s office put on its case in advance. They’ll see the prosecution’s witnesses. What do the witnesses say? How are they cross-examined? (Keep in mind, even the most credible witness will tell a story slightly differently each time, providing more fodder for cross-exam in subsequent trials.) Where are the evidentiary strengths and vulnerabilities? Where did the defense land its punches? What documents did the DA rely on? How did the prosecutors argue the case to the jury? What themes did they stress or de-emphasize? What resonated, and what flopped?

Any defense lawyer will tell you: it’s a strategic bonanza. There’s a reason why, if the Philadelphia Eagles play the Minnesota Vikings in Week Two, both teams will have squadrons of advance scouts watching the other team play in Week One. But here, the scouting edge is one-sided. Defense lawyers can learn everything, or nearly everything, by sitting in the gallery and watching the prosecution try its case against any defendant. But prosecutors will learn little about Trump’s defense by seeing Chesebro’s or Powell’s defense.

Sure, there will be marginal differences in how the prosecution presents its case, depending on the particular defendant(s) sitting at the table. But the core of the DA’s case will remain the same: these people worked together, as an organization, to steal the election. Willis has chosen to file racketeering charges against all 19 defendants, alleging that they acted together to commit common criminal ends. There are tactical advantages to Willis’s broad-stroke approach – most importantly, she gets to prove to the jury the full scope of the structure, personnel, and activities of the charged Trump election-theft enterprise. As a necessary result, however, she can’t go into the first trial and seek to prove the charges narrowly against Chesebro and Powell. Willis has charged them with being part of the racketeering enterprise, so she’s going to need to prove it, in full. The DA has not given herself the option of trying individual defendants with a scalpel; she has charged the case with a sledgehammer, and now she has to use it.

Chesbro and Powell may come to regret their decisions to forge ahead quickly, or they might find prompt vindication. That outcome remains uncertain. But there’s no question that, by invoking their Speedy Trial rights, they’ve complicated matters for Willis and done a substantial favor for Trump.

Stay Informed,