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Editor’s note: The following is a dispatch from a hearing held on Sept. 14, the latest episode in Lawfare’s series of dispatches on the Fulton County district attorney’s criminal case against former President Donald Trump and 18 others.
It’s a few minutes before 10 a.m. when a defense attorney rises to his feet to address the clutch of spectators seated in the gallery of courtroom 5A at the Lewis R. Slaton Courthouse in Fulton County, Georgia.
The lawyer—a bald man clad in a gray suit—pauses for a moment before he speaks, building a moment of dramatic tension as he scans the faces of the audience.
“Someone on Twitter said it looks like I skip leg day,” he declares, meaning that someone is accusing him of doing inadequate workouts and therefore having chicken legs. This is what happens when there are cameras in the courtroom.
The man is Scott Grubman, a defense attorney of the Georgia-based firm Chivilis Grubman. He represents Ken Chesebro—the Harvard Law grad turned bitcoin millionaire turned alleged architect of a plot to overturn the results of a democratic election—in the Fulton County district attorney’s sprawling racketeering case against former President Donald Trump and 18 others.
Seated at the counsel’s table behind him are his colleagues on Chesebro’s defense team, Manny Arora (who may be the only lawyer in this case with a palindromic surname) and Robert Wilson. They are joined by Brian Rafferty, the defense attorney who represents Chesebro’s co-defendant, Sidney Powell.
Audio of today’s hearing is available here:
We’re here because Chesebro and Powell are set to stand trial starting Oct. 23, 2023. The judge presiding over the case, Scott McAfee, has called a hearing on several pending motions filed by Chesebro and adopted by Powell.
And as we wait for the judge, Grubman has seized the opportunity to address the allegation that he neglects leg workouts.
“I do not skip leg day,” he insists. “Quote that.”
But before Grubman can litigate the matter of his leg routine further, a court officer shouts “All rise!” and Judge McAfee sweeps into the room to take his seat behind the bench.
Judge McAfee begins by explaining that there are three pending motions he intends to hear argument on today. The first is a motion to permit defense counsel to speak with the grand jurors who returned the indictment against Chesebro, Powell, and 17 others. The second is a motion to unseal transcripts produced during an investigation conducted by the “special grand jury,” which spent more than seven months last year hearing witness testimony and other evidence related to the district attorney’s 2020 election probe. And the third motion on the agenda is a motion to reveal the identities of 30 “unindicted co-conspirators” referenced in the indictment.
He says nothing about counsel’s legs.
As an initial matter, special prosecutor Nathan Wade jumps up on behalf of the district attorney’s office to inform the court that the third motion is more or less moot. The state, he says, “intends to comply with all of its legal and ethical obligations to turn over co-conspirator information.” In turn, McAfee announces that he’ll enter a one-sentence order declaring the motion moot.
Wade then turns his attention to the motion to “unseal” the special grand jury transcripts. He announces that the district attorney’s office intends to turn over at least one such transcript to defense counsel: Robert Cheeley's testimony before the special grand jury. According to Wade, that’s because Cheeley is himself charged with perjury in the indictment and his testimony is an “integral” part of the state’s case. As to other transcripts, Wade continues, the state takes the position that those materials are not “discoverable.”
McAfee invites Arora to the lectern to argue on behalf of Chesebro. Arora points out that under state law, the prosecution is obligated to hand over all evidence that it intends to present during its case-in-chief at trial. And he contends that the transcripts or other special grand jury materials could include exculpatory evidence or evidence the defense could use for impeachment purposes at trial. What’s more, he argues that secrecy rules don’t apply to special grand jury proceedings in the same way that they do in regular grand jury proceedings. For these reasons, he says, the defense is entitled to “everything” produced by the special grand jury.
Wade pops back up to respond for the district attorney’s office. “Let’s start with the premise that long-standing and unquestionable authority indicates that grand jury materials, including transcription records…are considered to be confidential,” he says.
But as Wade cycles through the case law supporting that proposition, Judge McAfee doesn’t seem convinced. The cases Wade cites are about regular grand jury proceedings, not special grand jury proceedings, he observes. Judge McAfee emphasizes that the issue here is whether special grand juries have a different degree of secrecy. Wade, responding to this, says that in this context the difference doesn’t matter: Secrecy is the “overriding principle” for all types of grand juries.
As an “initial reaction” to the state’s arguments, Judge McAfee concedes that Wade is probably right that not everything produced during the special grand jury investigation has to be turned over to defense counsel. He says he’ll take the matter “under advisement” and enter an order after he takes a “closer look” at the cases Wade cited. Still, McAfee continues, Chesebro and Powell’s request for special grand jury transcripts should be granted in part. At a minimum, he explains, the state will be obliged to hand over statements of witnesses it plans to call at trial.
Then Brian Rafferty, Powell’s defense counsel, briefly trots to the lectern to complain that the district attorney’s office did not file a written brief citing the cases on which it now relies. “They don’t respond to the motions in writing,” Rafferty gripes. “And that’s a troubling practice for me as someone who practices mostly in federal court.”
“I think you have to realize that might be standard practice in this building,” Judge McAfee replies. He assures Rafferty that he will provide defense counsel with the opportunity for post-briefing if needed. “I’m certainly gonna give you the opportunity to respond,” he says.
Now Judge McAfee is ready to turn to the last motion scheduled for argument today: Chesebro and Powell’s request that defense counsel be permitted to speak with the grand jurors who returned the indictment.
First up is Grubman, who strides to the lectern as though it were leg day to argue on behalf of Chesebro. He has "serious questions" about the independence of the grand jury in this case. He wonders aloud if an indictment could be “valid” if prosecutors summarized the charges in the indictment for the grand jury rather than allowing them to read it themselves. While acknowledging that would be a question of law to litigate later on, he claims that defense counsel must speak to the grand jurors to determine whether anything improper occurred during the grand jury presentation.
Grubman further claims that the law doesn't even require defense counsel to ask the court for permission to speak with grand jurors. In Georgia, he contends, the only aspects of grand jury proceedings that are "truly secret" are the deliberations of the grand jurors. While acknowledging that defense counsel cannot ask the grand jurors about what occurred during those deliberations, Grubman says that nothing in the law would prevent him from asking the grand jurors about what occurred outside of the grand jury deliberation room.
Judge McAfee, for his part, seems to agree with Grubman that nothing in Georgia law prohibits defense counsel from speaking with the grand jurors. But these grand jurors, he observes, have “been through a lot.” As such, any potential communications with the grand jurors would have to be “voluntary,” McAfee explains. Then he expounds on other potential ground rules: The interviews with grand jurors would need to be recorded, and the district attorney’s office or a representative of the court could observe the interviews. Additionally, he says, there could be strict parameters around the subject matter discussed.
In response, Wade announces that the district attorney’s office has a PowerPoint presentation to support its argument opposing the motion. His colleague, Daysha Young, jumps up to present the PowerPoint on behalf of the state.
Young argues, first, that Chesebro’s proposal to question the grand jurors about whether they read the indictment would amount to questioning the grand jury’s deliberations, which is strictly prohibited. Further, she points to public policy and safety reasons to disallow such communications with grand jurors. And she claims that one of Chesebro’s attorneys, Arora, has previously been “admonished” by a judge in DeKalb County for “knocking on grand jurors’s doors and asking them questions.”
Grubman, incensed at the latter part of Young’s presentation, hurries to the lectern to defend his co-counsel. He accuses Young of "defaming" Arora.
Judge McAfee is having none of it. “If you want to handle that outside of the courtroom, that’s your business,” he instructs Grubman. “But for now to stay focused, I think we should just focus on the law.”
Moving on, Judge McAfee announces that he’s ready to summarize his rulings on the motions. As to the motion to speak with grand jurors and the motion to unseal the special grand jury transcripts, McAfee explains that he’ll take those “under advisement” and enter a written order in due course. The third motion, he reiterates, is moot because the state agreed to provide names of the unindicted co-conspirators.
Finally, turning to housekeeping issues, McAfee observes that the court is on a “compressed timeline” to get the case to trial starting Oct. 23, 2023. And to ensure that the provisions of the speedy trial statute are met, he continues, “We’re going to make the attempt to have this jury sworn … by Nov. 5.” To do that, he explains, the court will likely need to adopt certain practices to make jury selection more efficient.
And with that, we’re done for the day.