'Careful what you wish for': Legal analyst lists challenges of trying Trump co-defendants together

06 September 2023

MSNBC legal analyst Katie Phang broke down Fulton County Superior Judge Scott McAfee's concerns about District Attorney Fani Willis potentially trying all nineteen individuals indicted in her Racketeer Influenced and Corrupt Organizations Act case for their alleged attempted theft of the 2020 presidential election.

"There are logistical practical nightmares that cannot be ignored when it comes to the idea of trying nineteen defendants together. I'll set the table for you a little bit here and for our viewers," Phang began to host Nicolle Wallace on Wednesday's edition of Deadline: White House.

"The state could accommodate at its table only four lawyers," Phang continued. "There were four lawyers that were sitting on behalf of the state of Georgia in the very first row of the peanut gallery where the rest of the public was sitting. There were only three lawyers sitting at counsel's table for the defense. Two for Kenneth Chesebro, one for Sidney Powell. Can you envision then the idea of a minimum of one, two, maybe more lawyers on behalf of nineteen defendants sitting in that courtroom?"

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Phang added, "It's not just the geography, it's not just the real estate. It's the idea of everything that leads up to that trial, Nicolle. It's the pretrial motions. It's the idea also that there's a pending ruling from a federal judge as to whether or not removal occurs, and that was a major question that was posed by Judge McAfee. It's the first time anybody has raised it yet from either the bench or from the kind of gaggle of lawyers that we speak to when we're here. It's the idea of double jeopardy attaching. When you swear in a journey, you end up having jeopardy attached to a case. So it's the idea that you can't try a defendant again once that jury's been sworn in."

Phang further recalled "Judge McAfee asking the state specifically, almost, 'Be careful what you wish for if you want all nineteen at the same time. What if I pick a jury and I swear them in and there's pending removal or there's removal of defendants to federal court that end up coming back to state court eventually once appellate remedies are completely exhausted?' And so really it was a, 'How do I manage this? How do I literally manage nineteen defendants today?' And we're gonna be seeing some additional briefing by next Tuesday, which is the deadline for the state to tell the court, answering questions about removal, answering questions about do you really do nineteen defendants at one time?"

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