Fulton County Superior Court

***EFILED***FD
Date: 8/31/2023 12:42 PM
Che Alexander, Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

STATE OF GEORGIA, :
:
Plaintiff, :
:
v. : CASE NO. 23SC188947
:
DONALD JOHN TRUMP, : Judge: Scott McAfee
:
Defendant. :

PRESIDENT TRUMP’S MOTION TO SEVER HIS CASE FROM THOSE

OF CO-DEFENDANTS WHO DEMANDED A STATUTORY SPEEDY
TRIAL

President Trump moves the Court to sever his case from those of his co-

defendants who have demanded a speedy trial under O.C.G.A. § 17-7-170 and who

have a scheduled trial date of October 23, 2023. The underlying reasons and

justifications for the Court to exercise its discretion and grant the requested

severance include:

(1) The substantial adverse procedural and substantive “effects” President Trump

would endure as noted in the State’s August 30, 2023 filed “MOTION FOR

COURT TO ADVISE DEFENDANTS OF EFFECTS OF SPEEDY TRIAL

DEMAND UPON EVIDENTIARY AND PROCEDURAL RIGHTS AND

BRIEF IN SUPPORT.” (Attached as Exhibit 1.)

(2) Undersigned lead counsel’s specially set trial in the Southern District of

Florida, Ft. Pierce, before Judge Cannon on September 26, 2023 in U.S. v.

Dougherty, 9:22-cr-80022. Three defendants are going to trial and the case is

expected to last 2-3 weeks.

(3) Undersigned lead counsel will not have sufficient time to prepare President

Trump’s case for trial by the October 23, 2023 scheduled trial date of co-

defendant Chesebro, who has demanded a speedy trial. Respectfully,

requiring less than two months preparation time to defend a 98-page

indictment, charging 19 defendants, with 41 various charges including a

RICO conspiracy charge with 161 Overt Acts, Solicitation of Violation of

Oath by Public Officer, False Statements and Writings, Forgery, Influencing

Witnesses, Computer Crimes, Conspiracy to Defraud the State, and other

offenses would violate President Trump’s federal and state constitutional

rights to a fair trial and due process of law.

Wherefore, President Trump respectfully requests that the Court grant the

requested severance.

Respectfully submitted,

Steven H. Sadow
STEVEN H. SADOW
Georgia Bar No. 622075
Lead Counsel for Defendant
260 Peachtree Street, N.W.
Suite 2502
Atlanta, Georgia 30303
(404) 577-1400
[email protected]

CERTIFICATE OF SERVICE

I hereby certify I electronically filed the foregoing document with the Clerk

of Court using Odyssey Efile Georgia electronic filing system that will send

notification of such filing to all parties of record.

This 31st day of August, 2023.

/s/ Steven H. Sadow

STEVEN H. SADOW
EXHIBIT
1
 Fulton County Superior Court
***EFILED***FD
Date: 8/30/2023 6:12 PM
Che Alexander, Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

STATE OF GEORGIA |
| CASE NO.
v. |
| 23SC188947
DONALD JOHN TRUMP, |
RUDOLPH WILLIAM LOUIS GIULIANI, |
JOHN CHARLES EASTMAN, |
MARK RANDALL MEADOWS, |
KENNETH JOHN CHESEBRO, |
JEFFREY BOSSERT CLARK, |
JENNA LYNN ELLIS, |
RAY STALLINGS SMITH III, |
ROBERT DAVID CHEELEY, |
MICHAEL A. ROMAN, |
DAVID JAMES SHAFER, |
SHAWN MICAH TRESHER STILL, |
STEPHEN CLIFFGARD LEE, |
HARRISON WILLIAM PRESCOTT FLOYD, |
TREVIAN C. KUTTI, |
SIDNEY KATHERINE POWELL, |
CATHLEEN ALSTON LATHAM, |
SCOTT GRAHAM HALL, |
MISTY HAMPTON a/k/a EMILY MISTY HAYES |
Defendants. |

MOTION FOR COURT TO ADVISE DEFENDANTS OF EFFECTS

OF SPEEDY TRIAL DEMAND UPON EVIDENTIARY AND
PROCEDURAL RIGHTS AND BRIEF IN SUPPORT

COMES NOW, the State of Georgia, by and through Fulton County District Attorney Fani

T. Willis, and requests that this Honorable Court advise the Defendants of the effects of their

speedy trial demands upon evidentiary and procedural rights and provides the following in support:

I. INTRODUCTION

On August 14, 2023, a Fulton County grand jury returned an indictment charging the 19

Defendants above with 41 various charges including Violation of the Georgia RICO Act,

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
Solicitation of Violation of Oath by Public Officer, False Statements and Writings, Forgery,

Influencing Witnesses, Computer Crimes, Conspiracy to Defraud the State, and other offenses.

The statutory speedy trial demands filed thus far in the case, and any which may be filed

henceforth, will affect various issues related to discovery and procedure. Accordingly, the State

presents the following argument and citation of authority in order to assist the Court in resolving

any dispute which may arise with regard to those matters.

II. THE PROCEDURAL POSTURE OF THE CASE HAS BEEN DICTATED BY

DEFENDANTS’ SPEEDY TRIAL DEMANDS

As will be delineated infra, under Georgia law, the Defendants’ decision to file a speedy

trial demand limits certain of their options in this case, namely:

1) The Defendants cannot now argue that they are entitled to the State’s discovery
responses ten (10) days in advance of trial. Smith v. State, 257 Ga. App. 88, 90
(2002); Ruff v. State, 266 Ga. App. 694, 695 (2004);

2) The Defendants cannot now argue that they are entitled to notice of the State’s similar
transaction evidence ten (10) days in advance of trial. Brown v. State, 275 Ga. App.
281, 287 (2005);

3) The Defendants are now precluded from calling any witnesses whose statements were
not provided to the State at least ten (10) days in advance of trial. Clark v. State, 271
Ga. App. 534, 536 (2005); and

4) The Defendants cannot now complain that they received less than seven (7) days
notice of the trial date in this case. Linkous v. State, 254 Ga. App. 43, 47 (2002).

III. PROCEDURAL HISTORY OF THIS CASE

On August 23, 2023, the Defendant, Kenneth John Chesebro opted into the discovery

provisions of O.C.G.A. § 17-16-1, et seq. (“the discovery statute.”) and on August 24, 2023, filed

a “Demand for Speedy Trial” pursuant to O.C.G.A. § 17-7-170(a). On August 25, 2023, Defendant

Sidney Katherine Powell filed a “Demand for Speedy Trial” pursuant to O.C.G.A. § 17-7-170(a).

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
 On August 24, 2023, pursuant to the Defendants’ demand for speedy trials, this Court set

October 23, 2023, as the trial date for this case. Notice of the trial date was distributed by this

Court on August 24, 2023.

Notwithstanding the constraints foisted upon it by the Defendants’ speedy trial demands,

the State, in the spirit of good faith, has begun the process of supplying the Defense with responses

to its discovery requests. Those efforts have included contacting each attorney of record for the

separate Defendants who have filed an entry of appearance pursuant to Uniform Superior Court

Rule 4.2 and requesting that these attorneys provide an electronic storage device of a capacity of

at least two terabytes for copying of the initial batch of discovery. Counsel for the State has further

requested that each Defendant, through his or her attorney, provide this electronic storage device

to the Fulton County District Attorney’s Office by the close of business on Tuesday, September 5,

2023, and has informed these attorneys that the initial batch of discovery will then be served on or

about September 15, 2023.

IV. THE DEFENSE HAS WAIVED “10 DAYS NOTICE” OF DISCOVERY

By filing their speedy trial demands in this case, the Defendants have personally, willfully

and deliberately narrowed numerous options that would otherwise be available to them under

Georgia law. In connection with any rights under O.C.G.A. § 17-16-1, et seq., the Defendants have

effectively waived any claim to access to the State’s file information ten (10) days in advance of

trial. Smith v. State, 257 Ga. App. 88, 90 (2002), vacated/overruled on other grounds at Patterson

v. State, 278 Ga. App. 168 (2006); Hughes v. State, 302 Ga. App. 251 (2010).

The remedies for the State's failure to comply with the reciprocal discovery requirements

include a continuance and, “upon a showing of prejudice and bad faith,” exclusion of the evidence

not disclosed. O.C.G.A. § 17-16-6. Excluding evidence is a particularly "harsh sanction” that

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
should be imposed only where there is a showing of both prejudice to the defense and bad faith

by the State. Higuera-Hernandez v. State, 289 Ga. 553, 557 (2011). Criminal defendants are

obligated to request a continuance to cure any possible prejudice from the State's failure to comply

with the Discovery Statute. Major v. State, 306 Ga. App. 342, 343 (2010) cert. denied at 2011 Ga.

LEXIS 205 (Ga. Feb. 28, 2011).

In cases like this, where the defendants have elected to file a statutory speedy trial demand,

Georgia appellate courts approve of trial judges providing defendants with two options: (1) Go to

trial without a review of discovery; or (2) Waive the speedy trial demand and seek a continuance.

Ruff v. State, 266 Ga. App. 694, 695 (2004), cert. denied at 2004 Ga. LEXIS 737 (Ga. Sept. 7,

2004). Significantly, in Ruff, the Court stated unequivocally that the defense is, “obliged to request

a continuance to cure any prejudice.” Id.

In a case involving a defendant’s statutory demand for speedy trial, the Georgia Supreme

Court unanimously affirmed a defendant’s conviction where the trial court: (1) denied the

defendant’s continuance request; and (2) denied the defendant’s motion to exclude all State’s

evidence not supplied ten (10) days prior to trial:

Under all of the circumstances, we find that the trial court did not abuse its broad
discretion under OCGA § 17-16-6 by denying a continuance and refusing the harsh
remedy of evidence exclusion for the untimeliness of discovery. Instead, the court
used its judgment to fashion a remedy appropriate to a case in which there was a
speedy trial demand and no other reasonable time to proceed with the rather lengthy
trial within the constraints of that demand.

Higuera-Hernandez v. State, 289 Ga. 553, 559 (2011) (emphasis added) (internal citations and

quotations omitted).

In this case, if the Defendants do not seek a continuance or waive their speedy trial demand,

they cannot claim any error in proceeding to trial without the State’s discovery responses.

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
 On August 24, 2023, pursuant to the Defendants’ demand for speedy trials, this Court set

October 23, 2023, as the trial date for this case. Notice of the trial date was distributed by this

Court on August 24, 2023.

Notwithstanding the constraints foisted upon it by the Defendants’ speedy trial demands,

the State, in the spirit of good faith, has begun the process of supplying the Defense with responses

to its discovery requests. Those efforts have included contacting each attorney of record for the

separate Defendants who have filed an entry of appearance pursuant to Uniform Superior Court

Rule 4.2 and requesting that these attorneys provide an electronic storage device of a capacity of

at least two terabytes for copying of the initial batch of discovery. Counsel for the State has further

requested that each Defendant, through his or her attorney, provide this electronic storage device

to the Fulton County District Attorney’s Office by the close of business on Tuesday, September 5,

2023, and has informed these attorneys that the initial batch of discovery will then be served on or

about September 15, 2023.

IV. THE DEFENSE HAS WAIVED “10 DAYS NOTICE” OF DISCOVERY

By filing their speedy trial demands in this case, the Defendants have personally, willfully

and deliberately narrowed numerous options that would otherwise be available to them under

Georgia law. In connection with any rights under O.C.G.A. § 17-16-1, et seq., the Defendants have

effectively waived any claim to access to the State’s file information ten (10) days in advance of

trial. Smith v. State, 257 Ga. App. 88, 90 (2002), vacated/overruled on other grounds at Patterson

v. State, 278 Ga. App. 168 (2006); Hughes v. State, 302 Ga. App. 251 (2010).

The remedies for the State's failure to comply with the reciprocal discovery requirements

include a continuance and, “upon a showing of prejudice and bad faith,” exclusion of the evidence

not disclosed. O.C.G.A. § 17-16-6. Excluding evidence is a particularly "harsh sanction” that

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
were not provided to the State at least ten (10) days in advance of trial. Clark v. State, 271 Ga.

App. 534, 536 (2005), cert. denied at 2005 Ga. LEXIS 465 (Ga. June 30, 2005). See also O.C.G.A.

§ 17-16-7 (ten (10) day rule for witness statements); O.C.G.A. § 17-16-8 (five (5) day rule for

witness information); O.C.G.A. § 17-16-8 (five (5) day rule for physical evidence).

In Clark, the conviction against a defendant who proceeded to trial without calling his

witnesses was upheld. Significantly, the Court of Appeals approved of the trial court requiring the

defense to choose between: (1) Waiving its speedy trial demand and seeking a continuance; or (2)

proceeding to trial without defense witnesses not provided to the State. Clark at 536.

In this case, the rule of Clark should be applied to preclude the Defense from calling any

witnesses whose statements were not served upon the State ten (10) or more days in advance of

trial. Similarly, the Defense should be prohibited from admitting any evidence that was not served

upon the State five (5) days or more in advance of trial.

The importance of a defendant seeking a continuance and waiving a speedy trial demand

in order to obtain information potentially vital to the defense was underscored in Dingler v. State,

281 Ga. App. 721 (2006). In Dingler, the defendant specifically sought a continuance in order to

obtain a court appointed expert to review the State’s DNA evidence. The Dingler defendant’s

commensurate motions characterized the State’s DNA test results as, “the State’s only evidence

against [Dingler].” Dingler at 722 (emphasis added). Importantly, the trial court in Dingler did

not provide the same two options (go to trial without the evidence in question or waive the speedy

trial demand and seek a continuance) approved of in Ruff and Clark. Instead, the judge in Dingler

denied, “out-of-hand,” the continuance request and refused to entertain the “timely” motion for

funds to allow independent review of the State’s DNA testing. Under Dingler’s specific

circumstances, the conviction was reversed. Dingler at 723 (“Further, the record shows that

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
were not provided to the State at least ten (10) days in advance of trial. Clark v. State, 271 Ga.

App. 534, 536 (2005), cert. denied at 2005 Ga. LEXIS 465 (Ga. June 30, 2005). See also O.C.G.A.

§ 17-16-7 (ten (10) day rule for witness statements); O.C.G.A. § 17-16-8 (five (5) day rule for

witness information); O.C.G.A. § 17-16-8 (five (5) day rule for physical evidence).

In Clark, the conviction against a defendant who proceeded to trial without calling his

witnesses was upheld. Significantly, the Court of Appeals approved of the trial court requiring the

defense to choose between: (1) Waiving its speedy trial demand and seeking a continuance; or (2)

proceeding to trial without defense witnesses not provided to the State. Clark at 536.

In this case, the rule of Clark should be applied to preclude the Defense from calling any

witnesses whose statements were not served upon the State ten (10) or more days in advance of

trial. Similarly, the Defense should be prohibited from admitting any evidence that was not served

upon the State five (5) days or more in advance of trial.

The importance of a defendant seeking a continuance and waiving a speedy trial demand

in order to obtain information potentially vital to the defense was underscored in Dingler v. State,

281 Ga. App. 721 (2006). In Dingler, the defendant specifically sought a continuance in order to

obtain a court appointed expert to review the State’s DNA evidence. The Dingler defendant’s

commensurate motions characterized the State’s DNA test results as, “the State’s only evidence

against [Dingler].” Dingler at 722 (emphasis added). Importantly, the trial court in Dingler did

not provide the same two options (go to trial without the evidence in question or waive the speedy

trial demand and seek a continuance) approved of in Ruff and Clark. Instead, the judge in Dingler

denied, “out-of-hand,” the continuance request and refused to entertain the “timely” motion for

funds to allow independent review of the State’s DNA testing. Under Dingler’s specific

circumstances, the conviction was reversed. Dingler at 723 (“Further, the record shows that

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
 granted. In other words, the trial court was attempting to comply with the demand
for trial, and the only way to do so was by deviating from the notice requirement
of USCR 32.1.

Higuera-Hernandez v. State, 289 Ga. 553, 559 (2011) (emphasis added) (internal citations and

quotations omitted).

The Defendants’ decision to proceed with a demand for speedy trial in this case also

precludes them from arguing that they received less notice of the trial date as is generally required

by U.S.C.R. 32.1. Where, as in this case, a trial court is attempting to comply with a speedy trial

demand, deviations from U.S.C.R. 32.1 are authorized. Linkous v. State, 254 Ga. App. 43, 47

(2002), affirmed sub nomine on other grounds at Jones v. State, 276 Ga. 171 (2003). Under the

circumstances of this case, the Defendants who have filed a speedy trial demand, and any who

may file a speedy trial demand, cannot complain that they did not receive sufficient notice of the

trial date, should it be in less than seven (7) days in advance of trial. Their filing of a statutory

speedy trial demand precludes such an argument.

The State respectfully requests that this Court rule in accord with the foregoing case law

and that it require that the Defendants personally place upon the record that this is their decision

and preference to proceed in this fashion prior to the trial of this case.

VIII. THE DEFENDANTS SHOULD BE ADDRESSED DIRECTLY IN ORDER TO

RULE OUT THE POTENTIAL FOR INDUCED ERROR

In Hubert v. State, 297 Ga. App. 71 (2009) cert. denied at 2009 Ga. LEXIS 583 (Ga. Sept.

8, 2009), the defendant filed a statutory demand for speedy trial and received the State’s discovery

responses only seven (7) days prior to trial. Noting that the defense in that case had announced

“we’re ready” for trial, the Georgia Court of Appeals rejected the notion that the defendant in

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
Hubert was forced to make a “Hobson's Choice,” requiring him to decide whether he desired to

proceed to trial on the day his case was called:

[Defendant] contends that the trial court effectively prevented him from
withdrawing his demand for speedy trial and requesting a continuance.
[Defendant’s] assertion is not supported by the record and completely lacks merit.

Hubert at 440.

The Defendants in this case should be asked, directly and on the record, as to whether,

knowing of the consequences to their defense, it is their decision and preference to go forward to

trial at this time. Should they refuse to waive their speedy trial demand and request a continuance,

then any harm to the Defendants would be invited by the Defense and, therefore, not reversible

error. Hubert v. State, 297 Ga. App. at 440 (“[S]elf-induced error is not grounds for reversal.").

IX. CONCLUSION

In connection with statutory speedy trial demands, the Georgia Court of Appeals explicitly

enunciated that the pleadings cannot be used collusively:

Contrary to the view of some, our legal system is not simply an elaborate game of
“Gotcha!” This Court does not endorse acquittal by ambush on the part of a
defendant any more than it does trial by ambush on the part of the State. Nor do we
condone induced error. The object of all legal investigation is the truth, and
procedural rules are in place to further such goal in an orderly fashion.

Price v. State, 245 Ga. App. 128, 134 (2000) cert. denied at 2000 Ga. LEXIS 831 (Ga. Oct. 27,

2000); Jones v. State, 276 Ga. 171, (2003) cert. denied at 2002 Ga. LEXIS 594 (Ga. June 27,

2002). The State is entitled to a fair trial as well as the Defense.1 A defendant who does not possess

1
Cases requiring the State to consent to a waiver of jury trial reflect this. See, e.g., Zigan v. State, 281 Ga. 415, 417
(2006) (“Although appellants' waiver of the right to trial by jury appears adequate, the refusal of the prosecution to
consent left the trial court with no choice but to deny the demand.”); State v. Henderson, 283 Ga. App. 111, 112 (2006)
(“As our Supreme Court recently made clear, a defendant has no unilateral right to have his criminal case decided by
a bench trial without the acquiescence of the State.”). Similarly, cross-examination rights have been even-handedly
applied to the State as well the criminal defendant. Richardson v. State, 305 Ga. App. 363, 366 (2010) (“The State,
like any other party, has the right to conduct a thorough and sifting cross-examination and to pursue the specifics of a

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
 Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

/s/ John W. “Will” Wooten

John W. “Will” Wooten
Georgia Bar No. 410684
Deputy District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
 /s/ F. McDonald Wakeford
F. McDonald Wakeford
Georgia Bar No. 414898
Chief Senior Assistant District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

/s/ John W. “Will” Wooten

John W. “Will” Wooten
Georgia Bar No. 410684
Deputy District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
 IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

STATE OF GEORGIA |
| CASE NO.
v. |
| 23SC188947
DONALD JOHN TRUMP, |
RUDOLPH WILLIAM LOUIS GIULIANI, |
JOHN CHARLES EASTMAN, |
MARK RANDALL MEADOWS, |
KENNETH JOHN CHESEBRO, |
JEFFREY BOSSERT CLARK, |
JENNA LYNN ELLIS, |
RAY STALLINGS SMITH III, |
ROBERT DAVID CHEELEY, |
MICHAEL A. ROMAN, |
DAVID JAMES SHAFER, |
SHAWN MICAH TRESHER STILL, |
STEPHEN CLIFFGARD LEE, |
HARRISON WILLIAM PRESCOTT FLOYD, |
TREVIAN C. KUTTI, |
SIDNEY KATHERINE POWELL, |
CATHLEEN ALSTON LATHAM, |
SCOTT GRAHAM HALL, |
MISTY HAMPTON a/k/a EMILY MISTY HAYES |
Defendants. |

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of this MOTION FOR COURT TO

ADVISE DEFENDANTS OF EFFECTS OF SPEEDY TRIAL DEMAND UPON

EVIDENTIARY AND PROCEDURAL RIGHTS AND BRIEF IN SUPPORT, upon all counsel

who have entered appearances as counsel of record in this matter via the Fulton County e-filing

system.

This 30th day of August 2023,

FANI T. WILLIS
District Attorney
Atlanta Judicial Circuit

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support
 /s/ F. McDonald Wakeford
F. McDonald Wakeford
Georgia Bar No. 414898
Chief Senior Assistant District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

/s/ John W. “Will” Wooten

John W. “Will” Wooten
Georgia Bar No. 410684
Deputy District Attorney
Fulton County District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]

23SC188947 - Motion for Court to Advise Defendants of Effects of Speedy Trial Demand Upon
Evidentiary and Procedural Rights and Brief in Support