The indictment of former President Donald Trump in Georgia is unique among the pending criminal cases Trump faces in many ways, but one significant difference is that it involves nineteen defendants. In his first three indictments, Trump has a total of two co-defendants—his employees, Walt Nauta and Carlos de Oliveira, in the federal case in Florida related to his allegedly illegal document retention. In the other two cases, he is the sole defendant, although the federal indictment in the District of Columbia includes (presumably) unindicted co-conspirators. The Georgia indictment, by contrast, charges nineteen defendants, and each defendant faces a racketeering charge under Georgia’s RICO statute.
Cases involving that many defendants can be legally and logistically complicated to schedule and bring to trial. As discussed below, some of the defendants—particularly those whose alleged role in the conspiracy was more limited—may have strong reasons to seek separate trials. Fulton County District Attorney Fani Willis has made clear that she intends to “try the 19 defendants in this indictment together.” But if any defendant succeeds in being tried separately, the stakes for DA Willis and the State would be very high in that first trial.
Consider those stakes. A televised trial at the end of which one or more defendants was acquitted—or granted a mistrial—not only would give the remaining defendants a preview of the State’s trial evidence, but also would complicate the optics of the State moving forward with other trials. On the other hand, if a jury were to convict a set of defendants at an early trial, at least some of the defendants scheduled for the later trial might decide to plead guilty and cooperate in the trials against the remaining defendants. As a result, defense motions for separate trials could have a significant impact on how the trials against these nineteen defendants proceed.
The legal standard for deciding whether to allow separate trials affords great discretion to the trial judge, but there are at least legal grounds for Trump’s codefendants to ask for separate trials. Below I consider options for the different actors, and the risks and rewards involved in the choices ahead.
Reasons some of defendants might seek a severance
As a practical matter, there may be good reasons for at least some of Trump’s co-defendants to seek separate trials. The RICO charge in the indictment alleges a sprawling conspiracy involving nineteen defendants. If all nineteen are tried together, the State will offer evidence—very likely in granular detail—of each defendant’s actions in furtherance of the conspiracy. For those who allegedly played a more discrete or minor role in the conspiracy—like Misty Hampton, who allegedly gave Trump’s team access to the Coffee County election machines—being on trial with so many co-defendants could be beneficial in that the jurors could decide she is less culpable and acquit her. But it also carries a significant risk that, in light of the amount of evidence of a conspiracy, jurors might convict all (or nearly all) of the defendants, as happened in the Atlanta Public Schools RICO case brought by DA Willis where all but one defendant was convicted at trial.
In addition, in any trial in this case, jury selection will be very important. In Georgia, a defendant tried alone is entitled to twelve peremptory strikes. But if there are multiple defendants, the defendants as a group have a statutory right only to those twelve peremptory strikes. The trial court has discretion to grant additional peremptory strikes (up to five additional strikes for each defendant), and the trial court probably would grant at least some additional strikes, but some of the defendants—particularly those who allegedly played a smaller role—may have different interests in the types of jurors they might want to strike.
Finally, if any of the defendants wants a trial in the next year, they may have strong grounds for a separate trial. Trump currently has two criminal trials already scheduled in 2024, and a third that will likely be scheduled soon. He also has indicated in those cases that he wants to delay his trials until after the election in November 2024. And scheduling a trial with nineteen defendants—particularly a RICO trial that could be lengthy (the Atlanta Public Schools trial took eight months)—could be challenging. Those issues would not lessen much even if the list of defendants becomes somewhat smaller (due to cooperation deals or the like).
In Georgia, any defendant who requests a speedy trial, either in the term that they are indicted or in the next term, is entitled to have a trial within the term the request is made or in the following term. The Superior Court term for Fulton County begins every two months, beginning in the first week of January. Because this indictment was returned in August, if any of Trump’s codefendants file a speedy trial request before November 6, 2023, the trial would need to start before January 1, 2024, at the latest. If any of Trump’s co-defendants sought a speedy trial—particularly more minor alleged participants—that could give them strong grounds for a severance motion.
Effects of multiple trials
If a particular defendant (or set of defendants like those involved in Coffee County) were granted a severance because of speedy trial concerns, the trial in that case would be very consequential to—and riskier for—the State. It could be forced to try the least-culpable members of the conspiracy in the initial trial. If one (or more) of those defendants were acquitted—or granted mistrials as a result of a hung jury—in a nationally-televised trial, it might force the State to rethink at least some of the charges against other defendants. In addition, Trump and the defendants set for later trials would have the benefit of seeing perhaps all of the government’s evidence and its trial strategy. They would have the benefit of all of the cross-examination from the first trial and would have months to examine that testimony for any inconsistencies and other weaknesses.
To be sure, under Georgia law, if a severance motion is granted, the defendants are supposed to be tried in the order requested by the State. Ga. Code Ann. § 17-8-4. But if the reason for the severance is to alleviate speedy trial concerns, the State likely would have to try less culpable non-Trump defendants first. That may be even more likely if Trump successfully initiates pretrial litigation that is more peculiar to the case against him than to the cases against other defendants.
Of course, if the jury convicts the defendants in an initial case, that could also provide an enormous benefit to the State. One very significant effect of multi-defendant indictments is the State’s ability to gain cooperators to testify against their co-defendants. The State is undoubtedly offering guilty pleas to at least some of the indicted defendants in an effort to gain their cooperation against the remaining defendants. With nineteen defendants, there is a much greater incentive to plead guilty early and cooperate with the State. The first movers often get the better deals including because their information is more valuable at that stage. But even if all of the indicted defendants resisted plea offers involving cooperation, if a jury were to convict defendants at an early trial, at least some of the remaining defendants might well decide that the risks of going to trial are too great.
In sum, for the DA’s purposes, the best path forward is to draw down the list of defendants with plea deals, and when going to trial to frontload the strongest cases. For some of the defendants, the window between now and turning themselves in before August 25 may be among the best times to strike a plea deal on more favorable terms. Along all these paths, Trump’s best legal option is to try to be at the back of the line, but that comes with its own risks if the first cases result in powerful convictions.