Trump allies Chesebro and Powell again try to get their racketeering charges tossed ahead of Oct. 23 trial

Attorneys Brian Rafferty, left, representing Sidney Powell, and Manny Arora, representing Ken Chesebro, confer as Fulton County Superior Judge Scott McAfee hears motions in Atlanta on Wednesday, Sept. 6, 2023. Prosecutors in the Georgia election subversion case involving ex-President Donald Trump say a trial would likely take four months. The estimate from special prosecutor Nathan Wade came during a hearing Wednesday before Fulton County Superior Court Judge Scott McAfee on attempts by Chesebro and Powell to be tried separately. (Jason Getz/Atlanta Journal-Constitution via AP, Pool)

Attorneys representing Sidney Powell and Kenneth Chesbebro argued in Fulton County Superior Court Wednesday that prosecutors are incorrectly applying a state racketeering law to their 2020 presidential election interference case.

Powell and Chesebro in August were among the 19 defendants charged by the Fulton County District Attorney’s Office under Georgia’s Racketeer Influenced and Corrupt Organizations, or RICO Act, for allegedly trying to illegally overtun Republican Donald Trump’s election defeat to President Joe Biden, who won Georgia by fewer than 12,000 votes. 

The state’s RICO law being used in this investigation is modeled after a federal law designed to target mafia leaders and other conspirators suspected of committing crimes. 

Chesebro’s lawyer, Manny Arora, argued that the Georgia Supreme Court should decide whether this case meets the legal standards requiring defendants charged under RICO to have committed acts with the intent of financial gain or to cause physical harm. 

Chesebro is accused of illegally orchestrating in Georgia and five other states false slates of Republican electors voting for Trump in an effort to thwart Congress from certifying Biden’s election victory on Jan. 6, 2021.

“Prosecutors are coming up with novel theories to indict people through pigeon holing charges that don’t apply to the racketeering law,” Arora said at Wednesday’s court hearing.

Powell’s lawyer Brian Rafferty said that she and her cohorts are being prosecuted for attempting to overturn the results of an election they believed to have been rigged in to help Biden score a win over Donald Trump.

The way the RICO law is weaponized by Fulton prosecutors could lead to misuse of a law applied in ways the Georgia Legislature never intended, Rafferty argued. 

Powell faces multiple charges related to her alleged involvement in the hiring of a team of forensic computer experts who compromised voting software and other confidential voter data from the Coffee County elections office in early 2021.

“Things that are accused as overt acts: petitioning state legislatures, petitioning party electors, petitioning Georgia State officials, petitioning federal officials, all these different acts under the Electoral College Act; there were literally thousands if not millions of people who did those very things without requiring some connection to (financial) gain or (physical) harm,” Rafferty said.

“All of those people under Mr. Floyd’s theory could potentially by writing a letter, by having a conversation, they could arguably be accused of doing things that are in furtherance of some RICO conspiracy,” Rafferty said.

According to Powell’s attorneys, she had no involvement in setting up the visits to the rural Coffee election office in south Georgia. 

John Floyd, an Atlanta attorney, argued on Thursday that defense attorneys were making outlandish claims regarding the potential scope of the racketeering and conspiracy investigation.

“It’s a sky is falling argument,” said Floyd, who authored a book on the state-by-state examination of RICO laws. “The idea that anybody who supported Donald Trump is subject to indictment under this case, is absurd. It’s absolutely ridiculous. The state has never said it. The indictment doesn’t say it. We’d never do that.”

Superior Court Judge Scott McAfee questioned Floyd about how the state chose to exercise its prosecutorial discretion.

“So is there something in the law that prevents you from doing that, or is it just because you’re the guy being nice about it,” McAfee asked. 

Floyd replied that the 19 defendants were linked based on their intent to overturn the election.

Last week, McAfee rejected Powell’s attorneys’ motion to dismiss the charges based on allegations that the prosecutor withheld evidence that would prove her innocence.

Floyd also said Wednesday that two of the co-defendants in the case are accused of threatening two Fulton County election workers who had become targets of conspiracy theorists after Trump lost the 2020 election. Powell and several others are facing charges that they conspired to steal Georgia election data and defraud the government.

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