0:00

It's worth knowing what's

0:02

really going on. This

0:05

is the Atlanta Journal-Constitution.

0:11

Previously on Breakdown. I

0:13

said to him, well, it doesn't quite work that way,

0:15

you realize, and he said, we don't care. Why

0:18

would the Republican

0:18

governor and the Republican secretary of state

0:21

rig an election in favor

0:23

of the Democratic candidate for president?

0:27

I don't know. What if they're not supposed

0:29

to be the governor and the secretary of state? Welcome

0:33

to this special Turkey Week edition of Breakdown.

0:36

We were planning to take the week off, but the

0:38

leaks of all the witness proffers last week

0:40

prompted us to rip up our plans.

0:43

Right before we got our hands on most of those

0:45

videos, we had recorded a roundtable with

0:47

two of our favorite legal minds to get their

0:49

takes on the Trump case. Those were former

0:52

Gwinnett County D.A. Danny Porter

0:54

and defense attorney Bob Rubin. Breakdown

0:57

listeners may remember that Rubin represented

0:59

Travis McMichael during the Ahmaud Arbery

1:01

case, and regular Breakdown listeners

1:04

will know Porter well. We didn't

1:06

want a good interview to go to waste. But

1:08

first, we have a couple of news updates.

1:11

This is Episode 18, Breakdown

1:14

Bonus, Thanksgiving edition of

1:16

Season 10 of Breakdown, the Trump indictment

1:19

from the Atlanta Journal-Constitution.

1:23

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2:31

Welcome back to Breakdown, the podcast by

2:33

the Atlanta Journal of Constitution covering Georgia's

2:36

most important cases. I'm Bill Rankin,

2:38

the AJC's legal affairs reporter. I'm

2:41

senior reporter Tamar Hallerman. And

2:43

I'm Shannon McCaffrey, senior editor at

2:45

the AJC. If you recall from our

2:47

last episode, the Fulton County DA's

2:50

office filed a motion to revoke the $100,000 bond

2:52

on defendant Harrison Floyd. The

2:56

motion says Floyd's comments on conservative

2:59

podcasts and posts on X,

3:01

formerly Twitter, shows a pattern

3:03

of intimidation toward co-defendants

3:06

and witnesses. Prosecutors

3:08

want Floyd jailed pending trial. Judge

3:11

McAfee filed a notice saying he'd read

3:13

and considered the DA's motion. He

3:15

scheduled a hearing for Tuesday afternoon

3:18

and he wrote, quote, the defendant's

3:20

appearance cannot be waived. In

3:23

other words, Floyd has to attend

3:25

this hearing.

3:26

That's the judicial equivalent of saying

3:29

you might want to consider bringing your toothbrush.

3:32

And McAfee, who somehow seems to be keeping

3:34

up with all the moving parts in this sprawling case,

3:37

issued a protective order the day after he

3:39

held that hearing on the issue last Tuesday.

3:42

His order came just days after interviews

3:45

or proffers of several witnesses

3:47

were leaked to the news media. The

3:49

DA's office had sought a sweeping order

3:51

prohibiting the release of all evidence

3:54

prosecutors turned over to defense attorneys.

3:57

But prosecutors and defense attorneys arrived

3:59

at a compromise.

3:59

McAfee's order requires

4:02

prosecutors to identify materials

4:04

they deem too sensitive to be publicly

4:06

released. Defendants have 14 days

4:09

to challenge the sensitive designation.

4:12

McAfee also ruled some protection

4:14

of information from public disclosure

4:16

is needed to promote the full and unimpeded

4:19

sharing of evidence before the trial. He

4:22

also said potential jurors should be limited

4:24

from exposure to evidence that ultimately

4:26

may be ruled inadmissible at trial.

4:29

The order does not prohibit the release

4:31

of information or records that are already

4:34

publicly available.

4:35

As we reported in our previous episode,

4:38

news media outlets, including the AJC,

4:41

objected to a protective order. But

4:43

Judge McAfee decided one was necessary.

4:46

Okay, let's get to our interview with former

4:48

DA Danny Porter and defense attorney

4:51

Bob Rubin.

4:52

Thank you, Danny and Bob,

4:54

very much for joining

4:56

us on Breakdown. Let me ask you this,

4:58

Danny. So today I just noticed on the calendar

5:01

the case is three months old and

5:04

we now have four of the 19 defendants

5:07

have pled guilty. If

5:10

you had a case like this as a prosecutor,

5:12

what would you be trying to do?

5:14

Are there certain pressure points you would

5:16

be looking forward to try to get more guilty,

5:18

please? Yes, I mean, that's

5:21

sort of the strategy I think that they're

5:24

taking on, which is sort of

5:26

the way they did it in Cobb County against

5:28

gang cases is you snatch

5:31

up everybody, you charge them with RICO, and

5:33

then you peel the minor players away

5:36

as you can apply pressure in different points. So

5:39

I think what they're trying to do is look for

5:41

people who they can make an

5:43

offer to that

5:45

will accept. And then there's going to be a core

5:47

of people that they're

5:49

going to have to go to trial. Do you think

5:52

it's troubling for Fonny Willis

5:54

and only four people so far have pled guilty

5:56

or is it still kind of early in the game? It's

5:58

way early in the game.

5:59

I think that I think probably

6:02

they if they've gotten all the

6:04

discovery that would surprise me But

6:07

if they I'm sure the lawyers haven't had

6:09

a chance to look at it

6:10

and Bob on the flip side of that say

6:13

you're representing One of the demi remaining

6:15

defendants. What would you be doing

6:17

at this

6:18

point in a case like this? Well

6:20

aside from reviewing probably terabytes

6:23

of information, which is going to take a while. I

6:26

would be very concerned with with

6:30

Understanding what the people who have pled

6:32

have said to the prosecution. So you're talking

6:34

about pressure points I want to

6:36

know what Sidney Powell is telling the prosecution which in

6:38

the Ellis is telling the prosecution because that could

6:40

very well affect My client depending

6:43

on who that is. So there are 15

6:45

remaining defendants We'll probably have

6:47

fewer, you know when

6:48

the case comes to trial But Bob

6:50

you are in the

6:51

Atlanta Public Schools test-cheating case.

6:54

I think a dozen people stood trial,

6:56

right? And How

6:58

long how long did that last and how difficult

7:00

was that for you as a lawyer? The

7:03

trial itself lasted seven months

7:05

the case, of course lasted for several years

7:08

But the seven-month trial was certainly the

7:10

longest trial I'd ever been involved in and

7:12

it is taxing both financially

7:15

and personally How did you make it through? lot

7:18

of support from my wife A

7:21

lot of support from my partners in my law

7:23

practice and I really

7:26

believed in what I was doing in that trial I really

7:28

enjoyed the the

7:30

legal aspect of it the

7:32

litigation part of it the performance part.

7:34

I thought it was a really interesting

7:37

trial to be a part of and so It

7:40

was enjoyable and that's kind of what I do. I like

7:42

that kind of stuff

7:43

In what way might it be taxing

7:45

on a defense attorney that that we as

7:47

the public or as journalists might not be seeing

7:50

on the surface Danny knows this

7:53

When you're in trial you don't sleep very

7:55

well You're thinking about all the things that

7:57

are going to be happening the next day or so you're preparing

8:00

After you finish preparing for the evening, you

8:04

go to sleep and your mind's still working. You're

8:06

not at your best probably. And

8:09

by the end of a seven month trial, you are exhausted.

8:12

And I don't think people really

8:15

understand how physically taxing

8:18

being in a courtroom eight or

8:20

nine hours a day is week after

8:22

week after week. I mean

8:24

the worst experience I personally have had

8:26

as a trial attorney is nine weeks

8:29

of jury selection. And

8:32

yeah, you know you're doing the most important

8:35

thing you can do, but it is the

8:37

most boring thing you can do. I

8:39

always equated it to doing

8:41

the most boring thing you can think of with a gun

8:44

to your head. You're

8:47

just, you know, this is where the

8:49

game, you know, this is where the game is won or

8:51

lost. And it's

8:54

physically taxing because you're

8:56

always in

8:58

fight or flight mode, I guess.

9:00

This is the best way to describe it. Yeah, I

9:02

agree. What's

9:03

the longest trial you've been in, Danny?

9:06

And how many defendants? Have you had a trial

9:08

with many defendants before? Mine

9:10

was a death penalty case. So we had nine weeks

9:12

of jury selection. Then we had five weeks of

9:14

trial. So 13 weeks.

9:16

Bob, Judge McAfee

9:18

has suggested breaking up the case into

9:21

different buckets so that 15 defendants

9:24

won't be tried at the same time. What

9:26

do you think of that and how could

9:28

defendants be grouped? Is it the sort of thing where

9:30

they could be grouped by focus area in the case,

9:33

you know, the folks involved in Coffee County or the harassment

9:35

of Ruby Freeman? Is it something that is

9:37

more about low logistics and who's available to

9:39

go to a courtroom at a certain time? I'm thinking

9:42

Trump, you know, being indicted

9:44

in multiple jurisdictions.

9:45

You know, I really admire

9:47

the way Judge McAfee has handled the case so far.

9:51

I love the idea of breaking a giant

9:53

case like this where there's so many defendants

9:56

into smaller pieces. I think that's better for everybody.

10:00

And so, yes, I think it does make sense to

10:02

try the defendants

10:04

according to their role in the

10:07

alleged conspiracy. Certainly,

10:10

the Coffey County is a distinct piece. The legislative

10:13

part with David Shafer

10:15

and Sean Still and others would be a distinct piece.

10:18

Where Trump fits and all that, I don't know because he's

10:20

kind of in the overarching scheme of

10:22

things. But, yes, I think

10:24

it makes perfect sense and I wish other judges

10:28

would break down some of these big indictments we're

10:30

seeing now, like Judge McAfee is

10:32

doing. Andy, what do you think? If

10:34

a prosecutor, would you want to try them all at once

10:36

or

10:37

piecemeal a little bit? The

10:40

top tier people are

10:42

the ones that give me pause about

10:44

breaking it up into pieces. I

10:48

said from the beginning that I would

10:50

have indicted the case in smaller

10:52

bites. I would have done, you could

10:56

top it all off with a RICO

10:58

indictment, but I would have

11:01

broken it down into smaller bites.

11:04

I think a trial of that

11:06

magnitude is hard for a single jury

11:09

to, that's my dog's bowl.

11:15

But it's

11:18

hard to break it down into

11:22

littler pieces for

11:24

a jury to understand it. But

11:26

you mentioned about kind of looking

11:28

at it through the context of the top tier defendants.

11:31

If the ultimate goal is to get Donald

11:33

Trump and maybe two or three others,

11:36

you wouldn't want them to go last, right, if you're

11:38

prosecutors and give them any sort of advantage of seeing

11:40

what your evidence might be against

11:42

some of these other lower tier defendants. I

11:45

think I would have indicted it

11:47

in a way that you take the coffee

11:49

county group and you take

11:52

your top. So it would be Donald

11:54

Trump and

11:56

then the coffee county group. And then you have the

11:58

next one is. the legislative

12:01

part and Donald Trump. And so

12:04

Donald Trump faces three separate

12:07

indictments or four separate indictments, all

12:10

of them charging him with RICO because that's the theme

12:12

of your cases. He was kind of running

12:14

the show.

12:15

And Danny, what do you do about somebody like Trump

12:18

who has court dates in three

12:20

or four other jurisdictions right now? He's

12:23

starting in March and in May. What do

12:26

you do if you're Fonnie Willis? Do you wait?

12:28

Do you try and get Trump's part done

12:30

early? Juris Lexin could take ages.

12:34

Well, you have certain

12:37

rules that are going to affect you. First

12:39

of all, the state case, the federal

12:41

cases take precedence over the state

12:43

cases. So she doesn't

12:46

have a lot of choice in those kinds

12:48

of decisions.

12:51

It's my understanding they're all working

12:53

pretty closely together. So

12:56

I would think that within that limitation,

12:59

they're going to work it out themselves.

13:01

And Danny, what do you make of Willis's

13:03

strategy of asking every

13:06

defendant so far who's reached a plea deal to write

13:08

an apology letter to Georgians?

13:11

Is this something you've ever done before? No,

13:13

I try felony cases.

13:15

I never

13:18

thought about apology letters.

13:20

That always seems like juvenile court stuff.

13:25

Bob, have any of your clients ever been

13:28

asked to write apology letters?

13:29

First time I saw that was in the APS

13:31

case where every single defendant who

13:33

pled guilty and

13:35

then ultimately was convicted if they wanted to get

13:38

any kind of consideration from

13:40

the judge had to write an apology

13:42

letter. And I totally agree with Danny.

13:44

I think it's juvenile and meaningless and

13:47

a waste of time. Bob,

13:51

have you paid attention to Harrison Floyd's

13:54

defense? They're trying to show that the election

13:57

was actually stolen and he's asking

13:59

all this. information from the Secretary

14:01

of State in Fulton County to basically

14:03

show that what he was saying was true.

14:07

What do you make of that defense? I think

14:09

it's brilliant. I think it's what

14:11

else is he gonna do? I think

14:13

he has to pursue that. I

14:16

don't know that he'll get anywhere and I don't know how

14:18

much information he'll be allowed to see but

14:21

I think it's an interesting way of approaching it. Danny,

14:24

you have any thoughts on that? Well, as Bob

14:26

says, they only have certain

14:28

options that they're going to be able

14:29

to try and persuade a jury with. So

14:32

I don't think

14:36

they can succeed on that

14:39

defense and I think the danger is

14:41

if they start making that defense

14:44

early on and they try and present evidence

14:46

and they fail, their guy's convicted.

14:48

But as a defense strategy Bob, I

14:50

mean they're asking for mountains and

14:53

mountains of information and you mentioned they've already gotten terabytes

14:55

of discovery from the DA's office. Is

14:58

there time if you're a defense attorney

15:00

to be able to go through stuff like that? Are they looking

15:02

for a needle in a haystack or do all

15:05

that they really need to do is kind of muddle the water

15:07

just enough to show that there is

15:10

reasonable doubt?

15:11

I think

15:12

one part of the strategy is to be annoying

15:15

to all the other entities because that

15:17

pushes the prosecution maybe towards something favorable

15:20

to get rid of this guy in terms

15:22

of a plea deal. But yeah,

15:24

there is maybe a Hail Mary. They

15:26

may be looking for a needle in a haystack and

15:29

they may just find enough language

15:32

in these reports to make someone

15:36

believe there may be more, there may be a conspiracy,

15:39

you know, it does muddy the waters and maybe

15:41

that's all they need to do. I want

15:43

to talk about Demers. You

15:47

all had a reading assignment of Ray

15:49

Smith's Demir.

15:52

First of all, just for listeners, what

15:54

is a Demir? So a Demir is a

15:57

legal vehicle. It's a motion essentially

15:59

challenging. challenging the indictment

16:03

on its face. So challenging

16:05

whether it is pled

16:07

with enough specificity or whether it alleges

16:09

a crime in the way it's supposed to.

16:12

Also it's to

16:14

challenge any substantial errors

16:17

in the indictment. So

16:21

what Bob described is generally referred

16:23

to as a special demerter

16:25

and the general is

16:28

to challenge mistakes

16:31

or errors that are in the indictment

16:33

which would maybe render it invalid.

16:36

Okay. Well, Ray Smith

16:39

filed what appears on the face of it to

16:42

me at least, a pretty strong demerter with

16:44

regard to some counts. And

16:46

just a reminder, Smith is the Atlanta

16:49

lawyer who testified before a

16:51

state senate subcommittee with Rudy

16:53

Giuliani and he also advised the

16:56

Republican electors who

16:59

cast their electoral college votes for

17:01

Trump. And his demure

17:04

attacks at least three counts. One is

17:06

RICO, one is false statements

17:09

and false documents and the other is soliciting

17:12

legislators to violate their oaths of

17:14

office. And what's notable

17:17

is in this case I said

17:20

Steve Sadow, Trump's lawyer, has adopted

17:23

Smith's demure and

17:25

the false statements and solicitation

17:28

counts also apply to three

17:30

other defendants. Those are lawyers

17:32

Rudy Giuliani, John Eastman and

17:34

Bob Cheeley. All of them testified

17:37

before that senate subcommittee.

17:40

So I was curious what

17:42

you all think you can, you know, the first attack

17:45

is against the RICO count

17:49

basically saying that it doesn't have enough

17:51

specificity. And

17:53

I liked the example that was used that

17:55

there are thousands of bank

17:57

robbers in the U.S. who all have the same goal.

18:00

to rob banks, many shared the

18:02

same methods of operation, but that doesn't

18:04

mean all American bank robbers constitute

18:06

a RICO enterprise. What

18:09

was y'all's take on this

18:10

challenge? Yeah, from the prosecution

18:13

standpoint, you've got to remember first

18:15

of all, that demurs are not

18:18

an argument about evidence.

18:21

They're basically an argument about legality.

18:23

In other words, does the indictment

18:26

put the defendant on sufficient notice

18:28

to prepare a defense? And

18:31

my argument as a prosecutor in this case

18:33

would be, we're not talking about

18:35

every bank robber in America. We're

18:37

talking about these specific 19 people

18:41

that perform

18:43

specific acts in further.

18:48

Their goal was to overturn the election and

18:51

to keep Trump in power. So I think

18:54

the general rule is, as if

18:56

an indictment

18:58

contains all of the statutory

19:00

elements of

19:03

the crime, then it can withstand a demur.

19:07

And I think they're trying to drag it into the facts.

19:10

Bob, you have any thoughts? Yeah, I think

19:12

it is not surprising

19:15

that the defendants, Sean

19:17

Ray Smith in particular in this case, would

19:20

file a demur challenging the indictment. I

19:22

think that is a fairly routine

19:25

motion to make. In this case, I think there

19:27

is some substance to it. I think Mr.

19:31

Smith's lawyer makes some great points. Excuse

19:34

me. I mean, I have a real problem with Mr.

19:36

Smith being in this case at all. I

19:38

think lawyers doing lawyer jobs

19:42

should be exempt from the

19:45

allegations that are made here. We

19:47

can get to the specifics later. But

19:50

I think there's an

19:52

argument to be made that

19:55

the enterprise, which is

19:57

not an evidentiary thing, has to be alleged.

20:01

a certain way. What is the enterprise? How is

20:03

it structured? What does it do? It

20:08

is broad, certainly broad. I

20:10

think what saves the prosecution in this case is

20:12

we're not talking about people simply

20:16

believing the election was stolen, but these

20:18

people who are part of this indictment

20:21

all seem to be working for

20:23

the Trump campaign directly, for

20:26

President Trump directly, or for

20:29

people who are working for the Trump campaign. So

20:31

there is some narrowing

20:33

down of the enterprise

20:36

and the people involved in the enterprise.

20:39

What about the making false

20:41

statements? I mean, when I first saw this indictment,

20:43

during that testimony,

20:45

they said various people

20:48

said 2,500 felons voted illegally, 66,000 underage people

20:53

voted illegally, 10,000 dead

20:55

people voted. But

20:58

interestingly is that they're not

21:01

being charged with making false

21:03

statements to the legislature. They're

21:07

charged with making false statements

21:10

to the legislature at a time when the

21:12

GBI and the Secretary of State's office

21:15

was investigating the case. So

21:17

they're bootstrapping that to

21:19

make false statements to the

21:21

GBI and the Secretary of State, which

21:25

I'm really curious to hear what you all think about that.

21:29

That again, we're talking about we

21:32

don't know all of the evidence that's

21:34

going to come out. So I mean, it would

21:36

be really simple if

21:40

these people all went and were interviewed

21:42

by the GBI or the Secretary

21:44

of State and they in fact made those false

21:47

statements. But the way the indictment

21:49

seems to allege it is that

21:52

during their talk, during their speech

21:55

before the committee, that's when

21:57

they've made the false statements. To

22:00

me, it's a long reach if

22:03

you're going to say, well, the GBI had

22:05

to have heard about that or the Secretary

22:08

of State had to have heard about it. So

22:10

when they made the statements, they knew

22:12

these agencies would find out

22:14

about it. That seems to me

22:16

to be a long reach. I

22:19

see that as a problem. Do you have anything to add,

22:22

Bob?

22:23

I agree. I see clearly the statements

22:26

made to the General Assembly were

22:29

not made with the

22:31

intention that the GBI would hear

22:33

them. They were made to the legislatures to get the legislatures

22:36

to do certain acts.

22:40

They certainly didn't want the GBI

22:42

to be involved in this case at that time. We're

22:45

talking about, if I remember correctly, December 3, 2020 and

22:47

December 10, 2020. I'm

22:54

not even sure if there was a GBI investigation

22:56

at that point or not. I don't know. But

22:58

certainly these statements were made without

23:00

the intention that they be passed on to the GBI.

23:03

So I agree with Danny. I think this allegation is a

23:05

stretch. The third

23:08

to me is also very interesting. That's

23:10

the solicitation of legislators

23:13

to violate their oaths of office. This

23:16

demurf says the indictment does not allege

23:18

what oath of office was violated.

23:22

It says it's not a violation of the oath

23:24

of office for a legislator to enact legislation

23:27

that is unconstitutional, even

23:29

knowingly. I thought it had

23:32

some good examples. It

23:34

said lobbyists who advocate the legislature

23:37

to pass a law making it a crime for any

23:40

public library to have a book that mentions

23:42

the word sex or a

23:44

lobbyist who advocates that

23:46

the legislature enact a law that says white

23:49

supremacists cannot possess

23:51

firearms, those clearly violate the

23:53

First and Second Amendment. What

23:55

do you make of that? Well, I think

23:58

it's a really well-

24:00

written argument. The

24:03

concern I have or the issue

24:05

I have with it is the

24:08

defendants were not urging the legislators

24:10

to pass legislation. They were urging the

24:12

legislators to take certain acts that

24:17

as alleged would violate the law. So

24:20

if Giuliani, for instance, is

24:22

hypothetical, urge the legislators

24:24

to overthrow Governor Kemp by

24:27

an armed militia,

24:30

that seems to me to

24:33

be asking them to violate their oath of office.

24:36

I think and I don't have the indictment in front of

24:38

me. I haven't read it in months. But

24:42

if the issue is urging the legislators

24:45

to come up with a list of alternative

24:47

electors, that's

24:51

very different from urging them to pass certain legislation.

24:53

And so I think this would be an interesting

24:56

argument for both sides.

24:58

I agree with Bob. I

25:01

think it's problematic in that

25:03

for two reasons. Number

25:05

one, the whole violation of oath of office

25:08

law right now is in

25:10

an uproar. That's a thicket

25:12

I don't know that we want to go into for a

25:16

lot of reasons. But

25:17

I think the problem is that

25:20

at some point

25:22

the courts then start interpreting

25:25

is, you

25:26

know, is this just a bad thing

25:28

that no good cop or no good

25:30

legislator would do? Is it just

25:33

even though the oath doesn't say overthrow

25:36

elections, don't overthrow elections?

25:39

It's so bad that it's inherent in

25:42

the oath. And

25:49

those cases are problematic when you

25:51

come into this situation because

25:53

the oath of the legislators is pretty broad

25:56

and pretty general.

25:57

Well, Danny, so Judge McAfee has a hearing.

26:00

appearing on this demure and

26:02

some others on December 1st. He

26:04

issues his ruling at some point. The

26:07

losing party doesn't get an automatic

26:09

appeal, right? What

26:11

happens? The

26:13

losing party applies for a certificate

26:16

of immediate review which the judge either grants

26:18

or doesn't grant. Now,

26:22

I'm not sure, the only thing I'm not sure

26:25

of

26:26

procedurally is I don't know whether

26:29

if he grants a special demure

26:31

that blocks the prosecution, is

26:34

the prosecution entitled to

26:36

an

26:37

appeal rather than have

26:39

an apply for a certificate?

26:41

But they would appeal for sure. Absolutely.

26:44

And I guess what I was asking, what

26:46

if Judge McAfee does grant

26:48

the certificate of immediate review? Would

26:50

Trump's case, because he adopted

26:53

Smith's case, would it accompany that

26:55

case to the court of appeals? Yes. It

26:59

would go up on the same issue.

27:03

They're the same person essentially,

27:06

legally. And I think it'd be safe to say

27:08

that Eastman, Giuliani

27:10

and Chile's lawyers will probably adopt it as

27:12

well, right? It would be a smart move,

27:15

but I don't know. Well what do you think? Do

27:17

you think this is a case where a

27:19

demure that were a certificate

27:21

could be granted? I mean that would really change a lot

27:23

of the ballgame here, especially the timing

27:27

of a trial and everything. What would

27:29

be your take as to the issues

27:31

that have been presented and if

27:33

it's a close enough call for

27:36

the judge to grant a certificate of review?

27:39

You know, if I'm the defense, obviously I want

27:41

to take this up. If I lose in

27:43

the trial court, I want to take it up on appeal.

27:45

Of course, that does delay the

27:48

case for months and months which

27:51

may be exactly what they want. If

27:54

it goes up on appeal, it's conceivable

27:56

that it wouldn't be heard or just not heard,

27:58

but decided by the...

28:01

by the Court of Appeals until late

28:04

in 2024, right around

28:06

the time of the election. So

28:10

if I'm Judge McAfee, that's

28:12

a tough call to make. The judge does not

28:14

have to grant a certificate of immediate review,

28:18

nor does the Georgia Court of Appeals have to accept

28:21

it even if he does grant

28:23

a certificate. It's discretionary.

28:27

And we've seen in the APS case, we tried

28:29

to take an issue up in a locutorily

28:31

and we were denied by the Court of Appeals. So

28:35

there's no way

28:37

to know now what

28:41

the judge is going to do and what the Court of Appeals is going to

28:43

do.

28:44

And Bob, do you have a realistic bet at this point?

28:46

Or I know there's so many what ifs and things

28:48

that could happen in the interim. Do you

28:51

have any bet for when we might

28:53

go to trial? I know there's some pretrial motions due

28:56

on January 8th. Are we talking realistically

28:58

more like spring, more like summer?

29:00

Well, if you remember, spring

29:03

is when President Trump

29:05

has his, I believe, the

29:08

documents case scheduled. So

29:10

that would not be fair to him to have

29:13

this case scheduled at the same time. So I'm thinking it's

29:15

at least mid-summer before the case

29:17

is scheduled, at least, and that's without an

29:19

appeal.

29:20

And Danny, if you're the

29:22

professor, if you're Fonny Willis, I know that DOJ

29:25

in general has guidance saying you don't

29:27

want to be doing anything that looks super political right

29:29

before an election. I know DA Willis

29:31

at the state level is not necessarily bound

29:33

by that same guidance. If

29:36

you're her, would you try and stay away from the election

29:39

too? Do you try and get out in front of it and just

29:41

try and get it as far, you

29:43

know, completed as she can? Or do you wait?

29:46

I wouldn't wait. I mean,

29:49

I think this case is so

29:51

politicized from the very beginning

29:54

that I think that guidance

29:56

from the DOJ, which I've always kind

29:58

of thought.

30:00

work that yes a public interest rather

30:02

than in favor of the public interest I think

30:05

I would try and push it through because

30:08

those

30:09

political issues are all out there on the table

30:11

anyway. Well

30:14

thank you I have a final question maybe

30:17

you've already said answered it but what

30:19

are y'all looking for in the weeks ahead do you

30:21

think we can see more plea deals in the offing

30:24

sometime soon? I don't think so

30:26

I think it's gonna take an event I think

30:29

it's gonna take something but

30:31

I'll make disagree. You

30:33

know there are some defendants particularly

30:35

those in Coffey County who may now

30:37

with Sidney Powell taking a plea and Scott

30:40

Hall taking a plea may decide it's in their

30:42

best interest to take a plea but I don't see

30:45

defendants like Eastman

30:47

or Giuliani certainly

30:50

or even the legislators

30:52

who were following legal advice taking

30:55

a plea or a Smith for that matter. And

30:57

Danny you mean when it would take an event do

30:59

you mean just having some sort of deadline saying

31:02

you know we're gonna start jury selection now that's

31:04

what you mean by event? You have to get them into

31:06

court as long as people are not in court

31:09

there it's very hard to put pressure on

31:12

them so you've got to get them in front of the

31:14

judge so I think you

31:16

know if there were emotions hearing or

31:19

something along those lines where you could actually

31:22

get them into a courtroom you'd see

31:25

you might see a flurry of pleas

31:28

and I agree with the analysis that Bob has

31:30

you know there are some of them the

31:33

young lady who was the publicist who

31:37

took the election worker to the police station

31:39

that those kind of people are gonna start dropping

31:41

out pretty quick I think. Anything we didn't

31:44

ask you about that you want to weigh in

31:45

on? You know this may be a conversation

31:47

for another day but I represented

31:50

two lawyers who worked with Ray Smith

31:53

and they were witnesses and they did essentially

31:55

the same kinds of things that he did except

31:59

he ended up going to the meeting

32:02

with a special or with the legislators

32:04

who were asked to create this alternative

32:06

list. I think

32:09

and this just happens to be Don's client but I think

32:12

it's problematic going after lawyers

32:15

who are doing their job lawyering.

32:19

Especially when there's maybe thin

32:22

but some legal

32:24

basis that being the Hawaii case for

32:26

doing what they're doing. I

32:29

don't know if you all want to get into that another time

32:31

but I think that's fascinating. We've

32:34

gotten into it believe me. We can

32:36

talk about it though. I mean so this was

32:37

during the special grand jury investigation

32:40

portion of all of this Bob?

32:41

Yes. So two

32:45

lawyers who work with Mr. Smith, one is a volunteer

32:47

and one was paid were

32:49

witnesses in the special grand jury. Neither

32:52

were indicted, neither were I don't think really

32:54

considered as

32:57

defendants in the case by the prosecution. But

33:00

you know essentially they were doing their

33:03

job as lawyers coming up with creative

33:07

theories of their case

33:09

and trying to get hurt in the court of law which is

33:11

exactly where you're supposed to be hurt. They

33:14

weren't out there

33:16

whipping up crowds into a frenzy. They were

33:19

working in the courts of law. They lost. But

33:22

you know we don't prosecute lawyers for losing.

33:24

We shouldn't be prosecuting lawyers

33:26

at all unless they're absconding with

33:29

clients money and those kinds of things. So

33:31

I think it's

33:34

problematic to have included

33:37

Mr. Smith on this. Well

33:40

as a general rule I agree with

33:42

Bob. I think

33:45

that if there's a defense

33:47

in this that is the most compelling

33:49

defense. I was hired to

33:51

do a job. I did the job. I was

33:55

wrong. I lost. But that

33:58

doesn't seem to form a basis.

33:59

indictment and the only caveat

34:02

is unless there's something else that

34:04

we don't know about, I mean, you

34:06

know, unless there's a an

34:09

intercepted telephone conversation or

34:12

something else,

34:14

it all goes down. It goes

34:16

down to the basic thing that this case

34:19

turns on is at every step,

34:22

you're going to have to prove that that particular

34:25

defendant, whether it's Donald Trump or whether it's,

34:28

you know, an election worker in Coffey County

34:30

knew that what they were doing was

34:32

false, new, you know,

34:35

new from the very beginning. And

34:37

that's going to be the difficulty in this case

34:39

from A to Z is, you know,

34:42

because these people are going to come across as

34:44

true believers. I mean, they're going to they're going

34:47

to come across as, you know, we were saving

34:49

democracy. I'll tell you, as someone who has

34:51

read the emails between the lawyers, they

34:54

were true believers. None necessarily

34:57

that not that they would necessarily win

35:00

and not that they could prove every allegation, but they

35:02

believed in the legal theory

35:04

they were working on. We talked

35:06

to people like like John Malcolm at

35:08

Heritage, who thinks that it could chill lawyering,

35:11

that people will be scared to enter the profession or that

35:14

they'll be scared to be zealous advocates

35:15

for their client. Do you have similar

35:17

concerns, Bob, or is your concern in another

35:20

direction? No,

35:22

I'm not concerned that we have too many lawyers

35:24

already. It doesn't matter if we have more lawyers

35:26

coming. No,

35:29

I'm not concerned that this will chill lawyers. Lawyers

35:32

are very adept

35:34

at creating legal arguments that are

35:36

both creative and intellectually interesting.

35:38

I don't think this will stop them. This

35:41

is a unicorn in this case. This is a one

35:43

of a kind. And we've

35:45

seen Lynn Wood surrender

35:49

his license. We know that Jenna Ellis

35:51

and John Eastman also have bar

35:55

association issues. I don't

35:58

see lawyers running for the law. running

36:00

for the hills.

36:01

All right.

36:03

Well, thank you both. This was great.

36:04

Thank you all.

36:06

You ended with a flourish. Yeah, I

36:09

got I got worked up. Both of y'all

36:11

did. Still

36:15

to come, we'll answer your burning

36:17

questions about this case. This is

36:19

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37:25

Welcome back.

37:26

At the end of Episode 16, we asked

37:28

Breakdown listeners to submit any burning questions

37:31

about the case so far and what might

37:33

be ahead. We want to thank those of

37:35

you who reached out on social media and on

37:37

our Breakdown hotline. We received

37:40

several questions, and we chose a few to share

37:42

with you all today. The first question comes

37:44

from Casey from Aragon, Georgia. I

37:46

would love to hear more about

37:48

what happens to Trump's

37:51

campaign or his chance

37:53

at presidency if he is convicted of Wilson County.

37:56

Well, it certainly puts us

37:58

into uncharted territory. Long

38:01

story short, Tim can still run for

38:03

office. The Constitution has pretty limited

38:05

guidance when it comes to eligibility for

38:07

president. You just have to be 35 years

38:10

old or older, be a natural born

38:12

citizen and have lived in the US for

38:14

at least 14 years. It doesn't say anything

38:17

about having a criminal record or whether

38:19

or not you're in prison. But

38:24

we first of all are not expecting this case

38:26

to be wrapped up before the

38:28

election as DA Willis mentioned last

38:31

week during the Washington Post panel, she

38:33

expects that this could go into 2025. And

38:36

remember, appeals are going to be going on for years.

38:39

So I think we can pretty safely say

38:42

that it'll be ongoing past the

38:44

election. Ultimately, I

38:46

think it's going to be up to federal judges and

38:48

likely the Supreme Court to decide questions

38:50

like this, especially if Donald

38:52

Trump is ultimately elected in November

38:55

of 2024. DOJ has

38:57

guidance saying you can't invite a sitting

38:59

president, but obviously the framers

39:01

did not consider what could happen if a sitting

39:04

president is convicted. So a

39:07

lot will have to be worked out later. This

39:09

is really

39:09

amazing to contemplate. Okay,

39:12

here's our next question.

39:13

This is Sean from Atlanta.

39:16

Just want to know if we got to

39:18

be updated about the

39:21

investigation into the lieutenant governor

39:23

or

39:26

election interference. Thank

39:28

you. Well, he'd be talking about Bert Jones,

39:30

who was one of the Republican electors who

39:32

voted for Trump cast

39:35

elect or college vote for Trump. And

39:37

he was initially a focus

39:40

of the target of the investigation

39:42

by Fannie Willis and the special purpose grand

39:44

jury. But a conflict of interest

39:47

removed the Fulton DA's office

39:49

from investigating Jones.

39:52

So the investigation was transferred to

39:54

the prosecuting attorney's council of Georgia.

39:57

That's an organization that assists the DA's

39:59

office. across the state with conflicts, they

40:02

do training and so forth. And I wish

40:05

I could say we have not heard a word since

40:08

then. We don't know if they

40:10

have found someone to lead an investigation

40:12

or not. My only guess is

40:15

that because Jones as Lieutenant

40:17

Governor oversees the

40:19

state Senate, I would think we

40:21

would see a decision sometime

40:23

before the General Assembly convenes

40:26

in January. Okay,

40:27

next question and this is a two for

40:29

one. On X, that's the

40:31

site once known as Twitter, the user

40:33

chillaxophone asks

40:36

if there's any word on when the next trial

40:38

will be scheduled.

40:39

Similarly, Chris Phillips wants to

40:42

know why no trial dates have been set

40:44

yet.

40:44

Tamar, you want to take that one?

40:46

Sure. We've been in

40:48

a bit of a state of limbo ever since Ken

40:51

Chesbrough and Sidney Powell cut plea

40:53

agreements. Initially, remember, we were expecting

40:55

to be in the middle of a five month trial,

40:58

which would have been meeting for four days a

41:00

week in how first a day. And so

41:03

now that that's off the table, I think there's a real

41:05

open question about what the schedule is going

41:07

to be looking like moving forward. Judge

41:10

McAfee has set a couple deadlines over

41:12

the next couple weeks. Defendants

41:14

are going to have to hand over all of their discovery

41:16

to prosecutors in early

41:18

December. And then the only other date on

41:21

the calendar, there's one in early January

41:23

when pretrial motions are

41:25

due. But after that is sort

41:27

of an open question. And I think we have

41:30

to look at Donald Trump's schedule in some of these

41:32

other cases, as

41:34

Danny and Bob mentioned in our

41:36

conversation earlier. There's

41:38

a question of when there will be enough court time to get

41:41

to Donald Trump down to Fulton County,

41:43

given all the other cases that he has. And now

41:45

we have DA Fonny Willis, as we mentioned,

41:47

who's now projecting that this could

41:49

go into 2025. So I

41:52

think at this point, it's a safer bet to start looking deeper

41:54

into 2024 before we start talking

41:56

about a trial in Fulton County. But

41:59

it's still a

41:59

open question. Tamara, you mentioned yesterday

42:02

there was speculation that the trial in

42:05

the classified documents trial in Florida,

42:07

which was set to start May, might be delayed. Could

42:10

that end up, could we end up sneaking

42:12

into that slot if it opens up? Potentially.

42:15

We saw that Judge Aileen Cannon down in Florida

42:18

initially, Trump was scheduled to begin

42:20

the trial down there. I believe it was May 21st

42:22

or somewhere in there. She's now indicating that

42:24

she might push that. We don't know when

42:27

that would be. I wonder, it could

42:29

potentially leave an opening for

42:31

Fulton County. I guess it will be something

42:33

for, I don't know if the judges would want to talk

42:35

to each other or the prosecutors. But

42:38

remember, this Georgia case could take a good long while.

42:40

Even jury selection could take a very, very long

42:42

time given how well-known and divisive

42:45

Donald Trump and some of these other defendants are.

42:47

So it's something to take into consideration. Prosecutors

42:50

said they would need about four months to try this

42:52

case. When you add in jury selection, it could

42:54

be much longer. And then of course you have the political

42:57

calendar to keep in mind. DA Willis

42:59

says she doesn't care about that stuff, but

43:01

obviously it's going to be looming very large.

43:04

All right, Bill, this one's for you.

43:05

Call Me Shirley asks,

43:07

will the estimated time for trial diminish

43:10

at all if there are more defendants who

43:12

take plea deals?

43:13

Well the DA's office said when they were just going

43:15

to try Chesbro and Powell,

43:18

that the trial was going to last about five months.

43:21

So that was only two people going to trial. And

43:23

I found it hard to believe that they would really take

43:26

five months just for those two defendants.

43:29

So I think if more people cut

43:31

deals and there are fewer and fewer people going

43:33

to trial, I think the trial will be

43:35

shorter. I think it would have to be.

43:38

Okay, our next question comes from a

43:40

breakdown listener who wants to remain anonymous.

43:43

And they want to know why Georgia Governor Brian

43:45

Kemp and Attorney General Chris Carr

43:48

have generally been pretty quiet about the

43:50

case.

43:51

This listener says, quote,

43:53

for all of their talk about election integrity,

43:55

they sure haven't had much to say about

43:57

this concrete example of fraud. Right

43:59

now.

43:59

state.

44:01

Well, Governor Kemp and A.G.

44:03

Carr have been walking kind of a delicate line

44:06

here. On the one hand, especially you've heard

44:08

Brian Kemp really push back on some of the things

44:10

that Donald Trump has said about the election in Georgia.

44:13

And you've heard Brad Raffensperger especially really defend

44:15

his office's conduct and, you

44:18

know, the work that they've done. At the same

44:20

time, Brian Kemp is

44:23

a Republican political figure in Georgia

44:25

who I think is looking toward the future.

44:27

He is in his second term now, so he won't be able

44:29

to run for reelection in 2026.

44:32

But of course, his name has been in the mix talking about

44:34

a potential presidential run potentially

44:36

running for Senate in 2026, challenging

44:39

John Ossoff. So, I mean, he's got his

44:41

future to consider and, you know, his basis

44:44

is not that different from Donald Trump's

44:46

base. At the same time, you've

44:48

also heard the governor especially

44:51

really put the kibosh on discussions about

44:54

trying to reprimand

44:57

Fonny Willis as part of this new DA

45:01

oversight panel that's been created by

45:03

the state legislature. On the one hand, he did sign

45:06

that into law to create this panel, but

45:09

especially Brian Kemp talks a lot about his record

45:11

on making Georgia a very business friendly

45:13

state. And I think he doesn't

45:16

want something like that to turn

45:18

into a side show that could hurt Georgia's

45:20

standing in the business community.

45:22

And he mentioned, you know, there's not the votes to

45:25

make this happen. Chris Carr, on the other hand,

45:27

his name is in the mix to run for governor

45:30

in 2026. So, that's something to

45:32

keep in mind as we watch him in the

45:35

months ahead.

45:36

Okay. Last one,

45:38

last question. She runs FAR,

45:40

wants to know if any of the defendants

45:42

are ultimately convicted in this case,

45:45

would first offender status apply? And if

45:48

so, what

45:49

would the usual sentence

45:50

ranges be? Well, first offender

45:52

status would apply if none of the people

45:55

had been previously convicted, obviously.

45:58

And to get a first offender status, sentence,

46:01

your defense attorney is going to have to request it

46:03

from the judge and then the judge is up

46:06

to the judge as to whether he believes

46:08

that this person who's just been

46:10

convicted is worthy of it. And

46:13

if so, the range of sentence

46:15

could be whatever the judge imposes.

46:17

I mean the sentences for RICO go

46:20

a long, long time. I would think a first

46:23

defender sentence probably would not have

46:26

too many years on it. It could

46:29

also just have probation. So it's

46:31

up to the judge and of course the

46:34

defendant would have to request it.

46:35

So we saw first defender status

46:38

in the plea deals that we've had so far,

46:40

the four plea deals. I believe all four of them

46:42

have been granted first defender status. Does

46:44

that give you anything else beyond just

46:46

a reduction in sentence? At least for a few of them

46:48

it seems like it gets them

46:50

privileges after the fact like

46:53

having their record wiped clean. Would

46:55

that apply moving forward as well

46:57

or is that something the DA would have to agree to

46:59

separately?

47:00

Now that's the law in Georgia. If you complete

47:03

your sentence without getting

47:06

into trouble, without committing another crime,

47:08

without violating the terms of your probation,

47:11

if you're on probation, once you've

47:13

done that successfully, your

47:15

sentence is essentially wiped clean.

47:18

Well that's it for us this week. Hope

47:20

you have a great Thanksgiving. We'll

47:22

be back next week to catch you up on the Harrison

47:25

Floyd Bond hearing and any additional

47:27

developments as this eventful case

47:29

continues. In the meantime, keep

47:31

sending us your questions you may have about the case

47:34

for future episodes of this show. You

47:36

can reach out to me, Bill or Shannon on Twitter

47:38

or via email or you can leave a voicemail

47:41

on breakdowns question line at 404-526-2527. That's

47:48

404-526-2527.

47:51

As always, thanks very much

47:53

for listening. Enjoy the holidays.

47:56

Breakdown's producer is Alexandra Zaslow.

47:59

Our sound engine... Our sound engineer is Shane Backler. Our

48:02

podcast program manager is Jay Black.

48:04

Thanks to our presentation specialist, Pete Corson,

48:07

our colleagues David Wickert and Mark Neesey, editor

48:10

Jennifer Brett, and the AJC's

48:12

editor-in-chief,

48:13

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48:15

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48:23

safe and take care. Until next

48:25

time, I'm Bill Rankin.

48:27

I'm Tamar Hallerman. And I'm Shannon McCaffery.

48:30

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