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Fulton DA previews witnesses for first Trump RICO trial

Former U.S. President Donald Trump, left, sits with attorneys Joe Tacopina, center, and Boris Epshteyn during his arraignment at the Manhattan Criminal Court on April 4 in New York City.  (Andrew Kelly/Pool/Getty Images North America/TNS)
By Tamar Hallerman and Chris Joyner Atlanta Journal-Constitution

Fulton prosecutors on Thursday provided hints about their plans in the upcoming trial of two of the now 18 defendants in their 2020 election interference case.

The District Attorney’s office filed petitions seeking testimony from six witnesses who live outside of Georgia. Among them was Boris Epshteyn, a lawyer in former President Donald Trump’s inner circle; former Atlanta libel attorney Lin Wood; and several GOP officials in other swing states that Trump contested three years ago.

The petitions would function similarly to subpoenas if approved by judges in witness’s home states.

The documents amount to a preview of the DA’s approach in the coming racketeering trial involving Kenneth Chesebro and Sidney Powell, jury selection for which will begin on Oct. 20. Both demanded a speedy trial, which prompted a Fulton judge to separate them from the case’s other defendants, including Trump, former White House Chief of Staff Mark Meadows and Rudy Giuliani, Trump’s onetime personal attorney.

Chesebro was indicted for his role advising the Trump campaign on the appointment of GOP electors in swing states won by Democrat Joe Biden. Powell was charged for her alleged efforts coordinating with SullivanStrickler, an Atlanta company, to obtain breached election data from Coffee County.

Prosecutors say Epshteyn, one of the 30 unindicted co-conspirators included in the Fulton indictment, can provide information about both defendants.

They said Epshteyn attended a November 2020 press conference with Powell, during which she claimed that Dominion voting machines, which are used in Georgia, could flip votes from Trump to Biden. Epshteyn could also speak to communications he had with Chesebro, Giuliani and co-defendant John Eastman regarding “the attempt to disrupt and delay” the joint session of Congress on Jan. 6, according to prosecutors.

Prosecutors previously told Fulton Superior Court Judge Scott McAfee, who is overseeing the case, that they have 150 witnesses they could call. They indicated they would present their entire racketeering case at trial, even if it only involves a small number of defendants, to prove the entirety of the conspiracy they alleged sought to overturn Georgia’s 2020 election results and keep Trump in power.

Defense attorneys for Chesebro and Powell have sought to get individual charges against their clients dismissed and exclude certain evidence. They have also alleged misconduct on behalf of some of the prosecutors. Chesebro’s lawyers have argued that the DA’s office is seeking to make aggressive lawyering illegal, while Powell’s counsel has argued that prosecutors have excluded key evidence that would exonerate his client.

In one of their witness petitions, which was filed Wednesday but released Thursday, prosecutors said Wood would “provide evidence to the jury of Sidney Powell’s involvement in the conspiracy, specifically as it relates to her time at his estate in South Carolina.”

According to the filing, in late 2020 Powell and Trump’s former National Security Advisor Michael Flynn stayed at Wood’s home in the small town of Yemassee, S.C., during which Powell was allegedly plotting to have Dominion voting machines seized in several states and examined for what she claimed was an algorithm that flipped votes from Trump to Biden.

Fulton DA Fani Willis said Wood could provide communications between himself and Powell showing Powell’s “plans and operations” and could provide evidence of who visited Powell during her time at Wood’s estate.

Should Wood testify, Willis said he would not be arrested or charged with any crime related to the case.

Last month, Wood told the Atlanta Journal-Constitution that, if subpoenaed, he would testify truthfully to what he knows about the events following the 2002 election. However, he said he would not “flip” on Trump.

Wood already has testified before the special grand jury that spent eight months investigating alleged crimes by Trump and the other defendants and formed the basis for the indictment. That grand jury recommend Wood be indicted, but Willis did not include him as a criminal defendant.

In a separate filing, Willis also named Virginia resident Aaron Vick as a witness. Vick was among those who stayed at Wood’s South Carolina estate, and Willis said he could offer additional testimony about Powell’s time there.

The DA’s office also requested the testimony of a trio of witnesses who were involved in the appointment of slates of Trump electors in Nevada, Pennsylvania and Arizona, three narrowly-divided states that Biden won.

It called for testimony from Lawrence Tabas, the chairman of the Pennsylvania Republican Party who was slated to serve as a Republican elector in 2020 but chose not to participate in a Dec. 14 ceremony after Biden was certified the winner of his state. Tabas later forwarded emails he received from Chesebro to the Jan. 6 committee on Capitol Hill.

The DA’s office said that, among other things, Tabas would testify about “why he did not participate in the December 14, 2020 meeting in Pennsylvania, which will show to the jury that Chesebro’s plan was in fact unlawful.”

Prosecutors also asked to call James DeGraffenreid and Greg Safsten, whom Chesebro was allegedly in touch with about assembling Trump electors in Nevada and Arizona, respectively.

It’s unclear whether the witnesses will fight their summons, as many of Trump’s closest confidants did last year during the special grand jury investigation that preceded the indictment. Most out-of-state judges approved the Fulton petitions, which required witnesses to travel to the Fulton courthouse to testify, though a few people won their challenges.

At least one witness whom prosecutors are seeking to subpoena this time around has fought back.

In a letter earlier this week, an attorney for Bernie Kerik, the former New York Police commissioner and Giuliani confidant who was an unindicted co-conspirator in the indictment, accused Special Prosecutor Nathan Wade of violating Kerik’s constitutional rights against self-incrimination after his client was subpoenaed. Attorney Timothy Parlatore demanded a guarantee of immunity from prosecution in exchange for Kerik’s testimony.

In an interview with Channel 2 Action news, Parlatore claimed Wade showed a “deeply flawed understanding of the basics of the Fifth Amendment and the Sixth Amendment” in demanding his client testify.

The indictment claims Kerik was among those who met with lawmakers in Pennsylvania and Arizona to discuss ways to challenge the election results in those states and was on an email sent by Chesebro that included documents used by Trump electors in Georgia to cast their electoral votes.

In his Oct. 2 letter, which was obtained by The Atlanta Journal-Constitution, Parlatore suggested Kerik was included in the indictment “for publicity purposes” and to suppress his possible testimony on behalf of some of the indicted defendants.

“Either way, you made the public accusation, so now you must live with the consequences of Mr. Kerik (and presumably all other alleged unindicted co-conspirators) invoking their 5th Amendment rights and refusing to testify,” he wrote.

Parlatore said the only way Kerik would testify for the state would be if either he was granted immunity or if a hearing was held away from the jury to see if the state’s questions could implicate Kerik in a crime.