By Catherine Yang
Attorneys for Harrison Floyd, a co-defendant in a Fulton County, Georgia, case against former President Donald Trump and 18 others over their contesting the 2020 election results, filed several motions on Monday.
They asked the court to sever his case from most but not all of the co-defendants, unseal all 2020 election materials, and disclose any deals the state offered any co-defendant or co-conspirator named in the indictment, witnesses, or any officer of agent of federal of state governments, whether the deals or “bargains” were ultimately entered into or not.
Mr. Floyd believes that the prosecution has already reached plea bargains with several co-defendants in the case, according to the filing.
Disclosure of Deals
The “reveal the deal” motion (pdf) specifically requests the prosecution to include any summaries regarding the deals, dates on which the negotiations took place, polygraph examinations given to the witnesses, whether any of the witnesses reasonably anticipate being offered something in return in any other court, whether incarcerated witnesses were given special privileges in return for their testimony, whether witnesses were given any sort of immunity for any offense, and any agreements with any law enforcement agencies to not take out warrants against such potential witnesses. It also requests that the state reveal any deals witnesses had previously reached with any other agency in any other case.
“These matters are particularly relevant to the witness’s bias as it reflects his willingness, desire, and experience in cooperating with the Government,” the motion reads.
The attorneys argue that the guarantee of due process under the U.S. Constitution requires the state to reveal any agreements, formal or informal, with witnesses in a criminal prosecution.
“Indeed, the Government may not suppress favorable evidence that is material to the credibility of one of its witnesses,” they wrote.
The prosecution, led by Fulton County District Attorney Fani Willis, has estimated it will bring forth 150 witnesses in the trial against the 19 defendants. The 19 were indicted one month ago, with Ms. Willis arguing that their actions to challenge the 2020 election result in Georgia constituted a “racketeering criminal enterprise.” All were charged with violating the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act, and 40 other counts.
Severing Case
In addition to violating the RICO statute, Mr. Floyd was charged with two other counts: conspiracy to commit solicitation of false statements and writings, and influencing witnesses. He is named in 10 of the 161 acts of racketeering listed in the indictment.
The acts center around Mr. Floyd’s contact with co-defendant Stephen Lee, a pastor from Illinois, and Trevian Kutti, a publicist. They had contacted Ruby Freeman, an election worker and potential witness in an election fraud investigation, and the indictment cites those phone calls and texts as “overt acts in furtherance of the conspiracy.”
Attorneys for Mr. Floyd are seeking to sever his case from 16 of the defendants, excluding Mr. Lee and Ms. Kutti (pdf).
“Other than the fact that he is a Republican and supporter of President Trump, the remaining 38 counts do not involve Mr. Floyd at all, do not connect him to a common scheme or plan, and do not connect him or his co-defendants (Ms. Trevian Kutti and Rev. Stephen Lee) to the other 16 co-defendants and their facts,” they wrote.
The others were indicted for actions including putting together an alternate slate of electors and questioning the integrity of the ballot machines used in the election, which “are simply not relevant in the prosecution or defense of Mr. Floyd and his immediate co-defendants.”
Several defendants have already requested their cases be severed from each other, some arguing that the sprawling nature of the indictment hardly applies to them.
The prosecution has argued to keep the cases tethered, as it is a RICO case, which would require prosecutors to try the entire case each time against each defendant, regardless of whether they end up being split into two or more cases.
Judge Scott McAfee, presiding over the case in state court, has already agreed to sever the cases of Kenneth Chesebro and Sidney Powell from the rest of the 19 defendants, as they had both demanded a speedy trial. The two had also argued to have their cases severed from each other, as the acts they are named in do not overlap, but the judged ruled against it.
Mr. Floyd’s attorneys argue that if the case is not severed pre-trial, it would likely require severance later anyway, causing additional delays.
“If this situation were to occur, a later severance would have zero effect on the state’s juggernaut of resources, but it would unfairly impact defendants and their counsel, whose resources are finite,” the motion reads.
Subpoenaed Materials
The attorneys also filed a motion to unseal Nov. 3, 2020, general election materials mentioned in a subpoena issued, which has been made public in the court filing (pdf).
“The General Election materials are relevant and central to Mr. Floyd’s defense,” they wrote. “The State asserts that he and other defendants knowingly made false statements about the November 03, 2020 General Election and knowingly sought to overturn to November 03, 2020 election results.”
The materials include all mail-in ballots cast and their envelopes, reports, and drives from the electronic election management system; absentee ballot application forms; emails of correspondence of anyone working with or for elections groups and officials; system intrusion attempts logged; and lists of personnel with access to the servers.
