Sidney Powell Attorney Hints at Defense in Georgia RICO Case

The lawyer for Sidney Powell is trying to extricate her from the criminal case against former President Donald Trump in Georgia.
Sidney Powell Attorney Hints at Defense in Georgia RICO Case
Sidney Powell speaks during a press conference at the Republican National Committee headquarters in Washington on Nov. 19, 2020. (Mandel Ngan/AFP via Getty Images)
Petr Svab

The lawyer for Sidney Powell is trying to extricate her from the criminal case against former President Donald Trump in Georgia. Ms. Powell, a lawyer and former federal prosecutor who unsuccessfully challenged the 2020 election results, wasn’t really involved in the activities alleged in the indictment, her lawyer, Brian Rafferty, told the Fulton County court.

The sprawling indictment brought on Aug. 14 by Fulton County district Attorney Fani Willis alleges that the efforts of President Trump, Ms. Powell, and 17 others to challenge the election results amounted to a racketeering conspiracy.

The brunt of the charges focuses on their efforts to set up alternative slates of electors in several states, including Georgia, and then use them “for disrupting and delaying” the counting of electoral votes by Congress.

Ms. Powell wasn’t accused of participating in those activities, but rather of getting a data forensic company to access and copy data from election machines and computers in Coffee County, Georgia, without authorization on Jan. 7, 2021.

Ms. Powell “entered into a written engagement agreement” with the Georgia-based data company and “the unlawful breach of election equipment in Coffee County, Georgia, was subsequently performed under this agreement.”

During a Sept. 6 court hearing, Mr. Rafferty attempted to pick apart the allegations.

“The way the government has characterized that, the evidence is going to show they’re incorrect,” he said.

His argument will be that the election equipment access was authorized, or at least the people involved believed it was.

“There’s a lot of public documents that are out there that demonstrate that numerous folks associated with Coffee County authorized that visit,” he said.

In an Aug. 30 court filing, he went further, saying that “a unanimous Coffee County Election Board gave permission for the forensic inspection.”

Even if the board didn’t have the authority to allow the inspection, Mr. Rafferty appears to be pursuing the argument that Ms. Powell was under the impression that it did.

The indictment alleges that Ms. Powell communicated with the data firm regarding election equipment data in December 2020, that on an unspecified date she “delivered a payment” to the company in Fulton County, and that she “caused” the company staff to undertake the Coffee County inspection.

According to Mr. Rafferty, the prosecutors overstated the role of her client.

“She was not the driving force, the evidence will show that she was not the driving force behind that, that there were other lawyers not mentioned in this case that were actually driving force behind that,” he said.

“We submitted a Brady request [for exculpatory evidence] already to the [prosecutors] before this hearing asking for a host of different kinds of exculpatory material we believe the government has that will show that, that will show that she was not the person that was behind this as has been alleged in this indictment.”

He also pushed back on the “written contract” allegation.

“Her type-written name does appear on a contract, but she never signed the contract, and the contract isn’t even for Coffee County, it’s for another state,” he said.

The indictment says that the Dec. 6, 2020, agreement was “for the performance of computer forensic collection and analytics" on voting equipment in Michigan and elsewhere.

Mr. Rafferty asked the court to try Ms. Powell separately to avoid evidence presented against other co-defendants to prejudice the jury against her.

“Ms. Powell’s name appears maybe a dozen times in this indictment. She has nothing to do with the electoral college aspects of this which is going to involve all sorts of complex testimony about constitutional issues and things of that nature. Her only involvement, as alleged by the government, is what happened in Coffee County and even that they have wrong,” he said.

Kenneth Chesebro, a lawyer who represented and advised President Trump in the 2020 election challenges, also asked for a separate trial.

Mr. Chesebro stands accused of devising and executing the alternate elector strategy.

During the hearing, both his lawyers and Mr. Rafferty argued that their clients should also be tried separately from one another. Just as Ms. Powell wasn’t involved in the elector business, Mr. Chesebro wasn’t involved in the Coffee County affair.

The prosecutors argued that all the defendants should be tried together because the trial will take perhaps four months and over 150 witnesses and in a racketeering conspiracy case “evidence against one is evidence against all” and so they would have to repeatedly present their entire case.

Mr. Rafferty disagreed.

“I don’t think a trial about Coffee County, if that’s what we have a trial about, is going to take weeks or months. I think the trial could be over in a couple of days. Most of it is on video that a lot of folks have seen and there’s a handful of emails and that’s really it. There isn’t that much evidence,” he said.

During the hearing, Superior Court Judge Scott McAfee denied the request for separate trials for the two defendants, but he put Ms. Powell on the same expedited schedule as Mr. Chesebro with an Oct. 23 trial date since they both requested a speedy trial.

The prosecutors maintained that all defendants should be tried on that date, but the judge said he was “very skeptical.”

“It just seems a bit unrealistic to think that we can handle all 19 in forty-something days,” he said.

He gave the prosecutors until Sept. 12 to explain how they plan to logistically manage to get to trial in six weeks.

The case is complicated by several other defendants requesting the case be removed to federal court. Since those requests can be appealed to a federal appeals court, they may remain pending for months. The judge raised the issue of what would happen if the trial in the state court finishes and the removal is then granted and whether that would raise the issue of double jeopardy—the case would have to be dropped since a person can’t be tried for the same crime twice.

Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.