Pro-Trump Lawyers Kenneth Chesebro and Sidney Powell Try — Again — To Dismiss Georgia RICO Charges Against … – The Messenger
ATLANTA – Attorneys for pro-Trump lawyers Kenneth Chesebro and Sidney Powell, co-defendants in the Georgia racketeering case against Donald Trump, argued again Wednesday to dismiss RICO charges against their clients. They insist the state law was misapplied.
But prosecutors brought "the godfather" of Georgia RICO — the state's version of the federal Racketeer Influenced and Corrupt Organizations Act — to court to argue against them.
It’s the latest pre-trial hearing in the run-up to the start of the duo’s trial, set for Oct. 20 with jury selection. Chesebro and Powell have pleaded not guilty to seven state felony charges each tied to the 41-count Fulton County grand jury indictment.
Wednesday afternoon's hearing started with an argument from Chesebro attorney Manny Arora that the Georgia RICO charges against his client are misapplied, and betray the “legislative intent” of the law.
Arora’s attempt to enter an affidavit from Georgia State Sen. Chuck Clay, a GOP co-sponsor of the amended RICO statute, drew a quick objection from Fulton County prosecutors.
“It’s hearsay,” said John Floyd, a special assistant district attorney and RICO specialist for the DA’s office who during the hearing was described as the "godfather" of the law.
Floyd added that “the testimony of a single legislator, even if he was one of the three sponsors… there’s nothing to suggest that he has any factual knowledge.”
Fulton County Superior Court Judge Scott McAfee, who in open court previously expressed skepticism of Arora’s argument and the relevance of Clay’s testimony, said he'd allow the affidavit and the argument to proceed “for the record” and that he’ll “give it the consideration and weight that it is due.”
Arora appealed to McAfee that there’s no precedent for an application of the Georgia RICO statute like what the state has brought against Chesebro and the other defendants in the indictment.
“They de facto make law here because it’s never come up,” Arora said.
“It’s the intent of the general assembly of what it should apply to, it's’ not saying that should only apply to that,” McAfee said.
Brian Rafferty, an attorney for Powell, who signed onto Chesebro’s motions, said that trying to overturn the election in favor of Trump “is not a crime”
“People are taking lawful steps to challenge the results of the election to achieve a lawful purpose which they are allowed to do,” Rafferty said.
“There could be thousands, millions of co-conspirators in this case under the government’s theory,” he added.
Rafferty and Arora also argued that the government’s RICO charge is flawed because it does not identify “pecuniary gain” – the concept in criminal law that a monetary or economic gain motivates the commission of a crime.
Floyd countered that Rafferty and Arora’s legal reasoning is flawed. Citing Georgia case precedents, he pointed out that the defense’s argument had previously been shot down.
“The expression of legislative purpose is not an element of a violation of RICO,” Floyd said, citing a prior case, adding “this argument is without merit.”
“That’s as plain as it gets, neither of these cases have ever been overruled,” he said.
Floyd then cited an April 1997 interview with State Sen. Clay by a Georgia State University student in which Clay says that “the amendment (of RICO) was designed to make sure that [pecuniary gain] wasn’t the sole requirement.”
Floyd also said “it’s not true” that there have not been Georgia RICO cases without pecuniary gain, pointing to past cases “against churches where they dealt with sexual molestation and the concealment of that sexual molestation.”
McAfee at one point pressed Floyd to address Arora and Rafferty’s contention that prosecutor application of RICO would allow the prosecution of thousands if not millions of Trump supporters.
“Absolutely not,” Floyd said. “It’s absurd, it’s absolutely ridiculous, the state has never said it, the indictment doesn’t say it, we’d never do that,” he said, pointing out that the state indicted fewer people than recommended by the Special Grand Jury.
“Simply supporting a candidate is not a crime,” he said.
Further, Floyd pointed out that the perks that come with being president – including flying in Air Force one and living in the White House – could be construed as a pecuniary gain. Further, threats against Fulton County election worker Ruby Freeman met the RICO requirement of threats of physical injury. “That is the effect of physical threats, she was scared to death.” Also the breach of election systems in Coffee County, meet the RICO requirement for “economic injury.”
Arora rebutted that argument, saying “we are not trying to narrow the scope of the RICO statute and we’re not saying it’s unconstitutional” and countering that there is “not a single case in the state of Georgia without pecuniary gain of physical harm”
“They are misquoting cases to you and I have to come clean it up,” Arora said, pointing out that the case Floyd cited with the church hiding sexual molestation resulted in the RICO charge against the church being dismissed because prosecutors could not prove the Church didn’t know.
Arora also said Clay’s law review interview was selectively quoted.
“They are putting you on the spot, judge,’ Arora said. “It’s all wrong.”
Rafferty said the indictment would criminalize millions of Americans because many of the acts listed in the indictment are acts taken by many citizens: writing to legislators, petitioning federal and state officials or party electors.
“All they were trying to do was lawfully overturn the results of this election, that can’t be a crime,” Rafferty said.
Attorneys for Chesebro and Powell also argued that Georgia RICO should have a “continuity” requirement the way it exists in federal RICO, essentially that crimes need to have a minimum time frame to be prosecuted under RICO and that the two months from Election Day 2020 to January 2021 are insufficient.
But Georgia RICO has no such requirement.
“They're arguing essentially that there is one when there isn't … that there should be a continuity requirement, that due process requires it and so they're cobbling together a bunch of different ideas to kind of create this continuity requirement that doesn't exist,” said Georgia trial attorney and former RICO prosecutor Chris Timmons, who attended the hearing in person.
McAfee did not make any decision from the bench at the two-hour hearing on Wednesday, and is expected to decide on the motions in written orders.
Timmons stopped short of predicting how McAfee would rule, but said “if I was a trial court judge, I probably wouldn't roll against John Floyd on an issue of RICO.”