i think we need to think through, to me also is more this position we need to have all 19 people at the table 47 days from now, and maybe this is something, if you need to tag team with somebody else on the counsel, one of the first things i kind of want to talk through is potentially how removal affects this. so i know your estate is currently litigating this issue with multiple codefendants in federal court. and while that is happening until a decision is made, we can't issue a judgment of conviction here. >> yes, judge. >> no matter how judge rules, isn't either party going to have right to appeal that rule something. >> that's correct. both sides would have the right to appeal. >> so the 11th circuit could take, any idea of how long to weigh in? >> as long as they need to. >> right. so it could potentially even optimistically be a six month turn around for the 11th circuit to come up with a decision, right? >> yes, sir. >> if it's a four-month trial, this starts in october, we present the entire state's case, maybe even the jury has returned a verdict but we can't enter the judgment of conviction until the 11th circuit comes to a decision. is that sort of the scenario we're playing out here? >> judge, i think, could we have a moment, please? >> your honor, and by the way, let me add, i know this wasn't something i highlighted. this is something we need to submit for post hearing briefing, we can do that, but this is something that i think is a consideration we ought to be taking into mind. . and that may be the best route, judge, our position on that is it depends on what the scope of judge jones' order is, if he takes the position that he removes everyone or just removes those who may have some entitlement to removal. the law is unclear on how that works in a criminal case. >> you can see what happened, no matter how he rules, let's say he says some aspects of the case stay behind with us here in fulton county and the 11th circuit changes their mind and reverses that entirely and says, no, the entire case has to get removed to federal court, where does that leave us in the middle of a jury trial. is double jeopardy, have you removed your entire prosecution, because this case, and we have sworn in a jury, presenting evidence against the other codefendants. >> judge, again, i think for those very complex, kind of fine tuned details we may need the opportunity to brief those issues. >> it's not easy, and we've got, again, less than two months to figure this out. so i think to kind of charge ahead without come to go some thoughts on this very soon, might be risky. so and then the other issue here is even if we say that the three prongs aren't met, again with logistical issues, the state's case may take four months. but voir dire with 19 defense attorneys is going to be a different animal than voir dire with two. so i don't think saying they're both going to equally be four months no matter how many defendants are involved would be completely accurate, is that fair in terms of who can object to any particular question that's asked, the side bars that are requested, the sheer physical limitations if one attorney gets sick, can we so confidently say that each trial is going to be exactly four months no matter who's involved? >> i don't think we can say exactly. but it cuts both ways. if we had, for example, 19 people tried at one time, you have a witness up and let's say they're subject to 19 cross-examinations, each of those 19 is not going to be the same full length cross-examination. so you would have kind of a shorter, if you took them all together, you might have a shorter time for the witness on the stand with 19 people versus if you have 19 trials of one person. and i'm going to the extremes just to demonstrate the point, but if you have 19 trials with one defendant each, and each of those would be fully crossed, each of those witnesses would be fully cross examined 19 times, so there's a give and a take. some things might take longer, some things would be quicker. >> the other things to think in mind, this is going to be a case with a lot of pretrial motions, and again, i don't know how many hearings we need to have to sort through all of those. if we can press our time line to 40 something days, our ability to really even be able to weigh those and think through these issues, again, it just seems a bit unrealistic to think we can handle all 19 in 40-something days. and that's my initial reaction. thinking of just how to get this -- and are we delaying the inevitable. if we say there's no severance, aren't we going to have 17 defense attorneys file a motion for continuance saying they're not ready. some counsel indicated they're on trial in other cases in federal court, and if we're just going to be sitting in a position where we're having to consider continuous motion in 40 days, why delay the inevitable? >> sure. judge. the state's position on that is that we're here on two defendants, and so at this juncture, other defendants have filed their motions for severance, and they may raise those issues and it would be appropriate for the court to consider all of these issues in making its decision but for today's purposes, we're here on two defendant, and the issue is do we pull these two defendants out, not do we pull defendant 13 out or whatever the case may be, so the state's position is until those are raised by those parties once we have hearings on those that they shouldn't affect the court's decision as it relates to these two defendants. >> so at a minimum, i think what i'm hearing here is that it might be appropriate at this time to consider whether mr. chesebro and ms. powell proceed alone together? >> whether they have provided the court and met their burden to show that they should come out. not that the other 17 should come out, but they should come out of the pot is the state's position. >> okay. all right. >> i would like two minutes to respond. >> last word from the defense, this is your motion. >> judge, i will take this down. >> your honor, i'm not trying to over simplify this. it is a complicated case, factually and procedural, as to the 19, your honor, there's not going to be -- there can't be a trial of 19 people and it has nothing to do with the length of time. it has to the fact that two defendants executed their right to a speedy trial and 17 others didn't. and that's our right to do and their right to do, so with all due respect, your honor, i don't know that there's truly a reason to spend much time, of course i can answer any questions, but really much time talking about 19. so really, i think the question here today to wrap up is whether it's a trial of state versus powell and chesebro or two trials, one state versus chesebro, one state versus powell. all of the cases and we would like an opportunity since there will be some post hearing briefing to read those cases the court state cited and maybe respond to them. i looked at one. it's the one that says where there's sufficient evidence of a common scheming plan, willing ham versus state. joinder is authorized. that doesn't mean severance is inappropriate. those are not same thing. just because joinder isn't authorized doesn't mean the court shouldn't sever. let me be clear about something, you know, the state wants this case, and i think it's absolutely clear in the pleadings, the state wants a case against donald trump and all of these people together. the state wants to make this case about donald trump. donald trump is one of 19 defendants. ken chesebro is another one. ken chesebro is not a politician. before six, seven months ago, he was probably unknown to 99.999% of the population. so now to force him to sit here in a trial where there's evidence of all of these other things is just not fair, and i'm sorry, your honor, you know, they have a slide here, rico is different. sure, it's different. i acknowledged that in my opening. but what this slide does not say is that rico overrides the rules governing fundamental fairness, constitutional and statutory protection that are designed to protect defendants. this willingham case and upon information and belief, i believe most of the other cases cited by the government are cases like murder. the willingham case is a murder case, it's a murder conspiracy case. certainly the state understands the difference between three and four people being charged with one single conspiracy versus 19 people being charged with three or four different conspiracies and your honor, if the court were to take the state's arguments at face value, there would almost never if ever be a rico case that can ever be severed and think about what that means. it means that the state of georgia and the various district attorneys throughout the state can use the rico statute. can take three, four, five, six, seven different conspiracies and at their sole discretion with no oversight by any court say that they won, bring in one indictment, and we're all stuck together, and quite frankly, your honor, let's compare and contrast this to the ysl case going down a few, i don't know if it's floors down or up. i think down. that ysl case, i don't know much about it, but i've watched tv and podcasts, it's a common conspiracy. there were different overt acts toward the same conspiracy, and therefore the state can tie them together, but it's one conspiracy and that's where i think if you read that willingham case, where there is sufficient evidence of a common scheme or plan. how, your honor, is the plan down in coffee county, if it's a plan, the alleged plan, have any commonality other than electing donald trump, your honor. half of the united states took some act towards electing donald trump. if that were the only thing that mattered in terms of connecting all of these as a common conspiracy, there would be no rules of due process. and the last thing i'll say, your honor, is i will go back to what we said at the beginning. i think it's perfectly clear here that this trial does not have to last four months. because what the state is assuming is that let's say, your honor, grants our severance motion, and allows us to try our case just chesebro, and then powell. separately. well, they're saying, well, it's all going to be the same evidence. well, not necessarily, obviously the time hasn't come to file motions in limine. but we will obviously file motions in limine regarding the admissibility of certain evidence, extrinsic evidence of other acts that we don't think are relevant, and we have the other motion to sever the counts and no one motion, i don't think, your honor, should be obviously i know the court has to rule on all of them independently, but i would argue, judge, that you should consider them jointly in terms of figuring out the big picture here, which is it is within the court's control. >> let me clarify something because i think the argument of the motion to sever the counts really wasn't so much as a ruling on -- >> yes, your honor. >> limiting the evidence, versus here's the time we're going to hear the jury. >> let's say your honor was to grant that, it would be a pared down indictment, and then motions in limine, the things that your honor is not going to rule on it until we follow it but you might expect that if your honor grants a motion that says, all right, these 50 things in the indictment don't get read to the jury, it's probably a pretty good chance either way that we're also going to file motions in limine to say that evidence of those things that have nothing to do with mr. chesebro also can't come in. your honor, the bottom line is the state cannot be allowed to call something rico and the rules are out the window. it wasn't what will the general assembly attended. it wasn't -- it's not consistent with just basic principles of due process and fundamental fairness. with that, your honor, unless the court has any questions, we appreciate it and i reserve the remainder of my time to the extent there is any. >> we've beaten the dead horse as it relates to your discretion of granting a severance between mr. chesebro and ms. powell. the first point i made remains, ms. powell has filed for a speedy trial much in the same way as mr. chesebro. many of the defendants have filed motions to sever, and i don't think any of the case law or anything that the government has cited here today trumps my client's right to a speedy trial. she has asked for a speedy trial. she filed it timely, just like mr. chesebro. therefore, i think, at a minimum, her case is severed from the remaining 17. it must be severed because none of the cases that the government cited point to the idea that all of those considerations trump the statutory rights of my client to a speedy trial. so, you know, we can see what post briefing comes in about severing mr. chesebro from ms. powell but i don't think there's any dispute at this point that ms. powell and mr. chesebro are severed from the remaining 17 based on our demands for speedy trial. >> thank you, mr. rapperty. >> just briefly for the purposes of the record, i want to make clear, there is a dispute about severing the 2 from the 17. i want to make sure that's cleared up for the record, and just before we depart, we would ask if there's a briefing. >> i think we still have plenty to talk about before we wrap up for today. obviously i think as has been made clear we're on an expedited time line with the statutory speedy trial demands and we are certainly here, ready and willing to provide both defendants that right, and we plan to make that october 23rd trial date stick. with that in mind, i don't know if we're always going to be able to have the luxury of prehearing briefing and post hearing briefing and some of these issues may require a little more exploration than others. this one i don't think is one of those. when it comes to the question of whether to sever ms. powell and mr. chesebro, i certainly agree that there are always guardrails, and that rico as indicted can't just be used to do anything, but it is broadly construed and those guardrails are found and the three factors traditionally that we have gone through, really done seem to be at play here. we don't, for one, the antagonistic defense issue is concedes, both parties are going to be claiming they have no idea who the other is and won't be pointing the fingers at each other. i think the argument that they're charged on two separate silos of charges strengthens the idea that there won't be confusion amongst the jurors and there won't be spillover evidence. really, the strongest thing that i'm hearing, and i don't think it's invalid is that it's going to be kind of a matter of inconvenience, and potential added expense to have both defendants sit together. and that's certainly true, but there's also other judicial economy aspects to consider, and issues of inconvenience as well. we talk about the jurors. i don't think it's -- we can take for granted that these would both be two equally four-month long trials. i think it could easily be twice that with multiple defendants and i think we need to take into account the fact that one docket goes entirely on hold while this case is going, and instead of it being, if we're purely considering aspects of judicial economy which to me was really the only valid argument here, i think taking up two dockets for a period of four months also weighs into that as well as the voir dire process and the inconvenience to the jurors. so based on what's been presented today, i'm not finding the severance from mr. chesebro or powell is necessary to achieve a fair determination of the guilt or innocence for either defendant in this case, and so i'll deny mr. chesebro's motion to sever from ms. powell. i'll deny in part ms. powell's motion to sever from mr. chesebro. and the plan will be to enter a scheduling order for ms. powell, mirroring that of mr. chesebro, with the october 23rd date holding. it sounds like the state is still sticking to the position that all of these defendants should remain, and they want to address some of these removal issues. i'm willing to hear that, i remain very skeptical. but we can -- i'm willing to hear what you have to say on it, and, so again, because we're on a limited time frame, i don't think we have the luxury of waiting. how long do you think the state needs to respond to that issue? >> two weeks. >> i don't think we can do that. there's going to be motion deadlines, and we need to get schedules orders entered. >> i had to ask. >> that's fine, and i had to deny. >> understood. understood. >> ten days? >> i think the ten-day mark from today. i'm sending the indicator, folks are going to have more than ten days to file their standard post arraignment motions. let's see if we can have that by tuesday of next week. again, this is limited to how you think logistically we could possibly keep these defendants together, and i think we can limit that to ten pages. and if anyone else wants to respond they can to that issue, but. >> if you're still going on this issue, i did have a quick other issue, just as we have your attention to bring up. we have a pending motion to talk to the grand jurors. >> right. let me get to that. >> knowing mr. chesebro and powell are hurdling forward, and the motions are going to keep coming in, i don't think it makes sense to have these all pile up, so we would pretty much maybe just keep having these weekly sessions together and handle them one at a time. to that end, i believe we're starting another trial next week. i think it's a murder trial we're doing next week, but looking at thursday or friday of next week, how is everyone's availability? i only saw motions for mr. chesebro, so i guess the question is directed to mr. grubman and mr. aurora, looking at thursday and friday morning. >> we're here whenever the court instructs us to be. >> got it. >> your honor, could we ask for friday morning. >> on thursday morning? thursday afternoon? >> depending on the motion. >> so far you've got, i believe it's the two related to the grand jury and one more related this the clause. maybe we limit it, since the grand jury issue is something that might take more time to flush out if it's granted. maybe we limit to those two for next week, and we can save the constitutional arguments for another day. can we still do that thursday morning, though? i assume it's just those two relate to the grand jury. >> thursday morning or friday morning? >> thursday morning, it sound like everyone. and the two grand jury motions and mr. rafferty, if you want to jump on board and adopt them, we can obviously work you in. >> clarification, the briefing for the state by tuesday, is that going to be on a question of whether it's going to be a trial of 19 or a trial of 2? >> that's right. >> thank you. >> nothing else from mr. chesebro at this time. >> thank you, mr. grubman. anything else we should address since we're all here together? >> real quickly. >> yes, sir. >> the other defendants may have an interest in the issues about whether it's a trial of 19 or a trial of 2. so did some kind of briefing and response of the recess. >> i think that would be fine. i think some already have. i think folks have already been submitting severance motions saying that they're not ready, that they have conflicts and so that might very well suffice, but i'm not going to foreclose that opportunity if they want to be heard in more detail. we'll send out an e-mail to everyone indicating as much. >> and related to that on thursday morning, we eventually have some discussion as well with that briefing? >> we can. again, i think by then i'm hoping to have already ruled and issued some scheduling orders because we need to get that clarity so we can focus on what lies ahead. anything else? >> no, your honor. >> anything from the state? >> no. >> thank you, all. see you next week. >> thank you, judge. judge scott mcafee, leaving the bench after more than an hour and 20 minutes, giving us a real inside look at the incredibly complicated contours of this rico case against former president donald trump and 18 other codefendants for the purposes of this hearing today in particular sidney powell and kenneth chesebro, also called kenneth chesebro, but most of them calling him chesebro. we learned that a trial will take an estimated four months. the question is will it be one trial, will it be multiple trials? it sounded as if the judge said powell and chesebro cannot sever from each other in spite of the best efforts of their attorneys to give reasons why they said their cases are completely unrelated. the question really is what about the other 17. we have a lot to talk about here. i want to bring back nbc's garrett haake, also with us, harry litman. christian smith, msnbc legal analyst, carol lam, and former republican congressman david jolly. let's start with what you heard there, harry. the judge made it clear. first of all, they're hurdling forward, those are his words, the october 23rd date is holding. powell and chesebro have a right, that they have asked for to a speedy trial. where does that leave us? did you hear a ruling in that, harry? >> i think you have it exactly right in there. there are several rulings and other things that he is going to delay on. basically the defense tried to recharacterize this single rico case as multiple conspiracies some of which apply to some and others to others, and the state came back and the judge accepted the position, no, this is a single sprawling case and therefore the law and evidence are the same, and if you analyze that according to the three factors that govern severance, it doesn't give powell or chesebro, and by the way, john eastman has said he's also going to move for a speedy trial, a, any kind of argument for separating themselves. this happens all the time, defendants are together and evidence as to one might hurt the other, but that's not a reason to sever. as to the 17, because there's some question under georgia law, does that mean if we have that one case, the 17 follow, and i think he telegraphed pretty strongly, he doesn't want to do that, and the three factors are not exclusive. he has the discretion. he has given the state one more chance to brief why they should all be together, but i think he was making clear that he is very strongly inclined to just have powell, chesebro, and i think, eastman, for now, cleve off in a single trial with the other 16 to go later. and that will depend, in part on the resolution of these removal motions now in federal court. a complicated day, but i think it's clear enough where he stands and where he's going. >> and now there are going to be weekly sessions. he clearly intends to move this quickly, christian, because fulton county is your home. does this seem realistic to you to get this all together for october 23rd. how do you see this playing out in these coming five, six, seven weeks? >> i don't think it's realistic. the first republican primary is in january, in iowa. so that's going to play a big role in donald trump, i believe, wanting to delay can delay and delay. one of the attorneys brought up the ysl case going on right now. they're over extended between these two cases. that case, i believe they're still on jury selection, now you add this case on top of the workload that they already have. i don't think it's going to be realistic to do this case in the four-month time frame that they have given, and i think that donald trump and everyone else is going to do as much as they can to delay it, knowing that that republican primary is right around the corner. >> yeah, and garrett haake, when you look at that bringing together of the political but also just the timing, in terms of seating a jury, the questions that have been raised about things that are out there in the media, specifically from donald trump, you look at just how complicated that alone could be. >> yeah, that's right, chris, when you look at the federal cases, for example, the federal election interference case there, there you have a judge who said basically the more donald trump talks about the case, the faster she was going to set a trial date and move quickly to get ahead of the idea that there could be jury interference in the form of comments from the former president. here you've got a different set of factors in play, where you've not only got the same opportunity for donald trump, arguably the most famous person in the country to be out there talking about this case, and potentially influencing a jury, you've got all of these other codefendants, pushing and pulling in different directions for when they want the case to start. as you draw out the time line, let's say there's a trial of two, then a trial of 17, and each takes months of jury selection to find an impartial jury in fulton county that can handle it, and then wants to prosecute, you're already well past the 2024 election, anyway. so these things are all stacking up on top of each other in a way that makes judge mcafee's job difficult. in some respects, the trump attorney's campaign's job easy, the more complex this gets, the better for them politically, and arguably legally, at least as this case relates to the others, the more they can push anything out past 2024, the better they think his legal prospects are. >> carol, let's go back to the legal part of this, and go further into georgia's rico law and, three factors we heard about repeatedly when deciding whether to sever the trial. scott grubman argued the cases aren't remotely connected, limited versus tons of other charges in coffee county alone, right, so he says you can't put the two cases together. the prosecutor says the law allows the jury to be remedied other than severance. if the goal is a fair trial and you look at it through the lens of the georgia rico law, how complicated could so many defendants be for a jury, and is that the standard for the judge? >> well, i think the judge was very good in analyzing all of this, and for purposes of this discussion, i'm going to talk about rico law and conspiracy law in the same way. the same principles really apply to both. in conspiracy law or rico law, you can have a situation where not all of the coconspirators know each other or know exactly what each other is doing. that's the whole idea. conspiracy is about the agreement. rico is about the existence of a criminal enterprise. for this analysis, it's really the same because you can have something called a hub and spoke conspiracy where there's a leader, there's a central goal, and the hub knows what all the spokes are doing, the coconspirators, but spokes may not know each other. they all know that something is going on outside of them, so when we talk about sidney powell and the coffee county voting machines, the point is that sidney powell didn't think she was going to overturn the election results just by looking at coffee county voting machines. she knew something else was going on. and that was the larger conspiracy at issue here. so the judge has an intuitive feel for this because he was a prosecutor. he knows how these cases are charged, and as he said, these -- he says rico is brought, and he knows the conspiracy is broad, and you can charge cases this way, so on the facts presented to him or the allegations in the indictment, he does not appear prepared to sever anybody out for those substantiative reasons. >> well, harry, there was that one argument by the prosecution that may be, i think, most relatable to folks who were not lawyers, and that is that severing cases would require witnesses to come back again and again and again. let me play that part of the argument for you. >> i would ask you to please keep in mind that the proceedings presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience and some trauma of testifying. >> ruby freeman, shaye moss obviously, harry, the two folks who we all know and have come to understand very well what they went through, the way they were harassed, the way they were threatened, how their lives were completely up ended. it's a strong human argument, is it a strong legal one? >> it's a strong human one and a pretty strong legal one. it's completely connected to the point that carol was just properly emphasizing, which is in a rico case, everything comes in. so in theory, even if only chesebro and powell are tried come november, the state says we're going to put the entire case in because that's the conspiracy meaning days and days of testimony that literally have nothing to do with either defendant. that's going to be a little bit awkward if nothing else, but that's what rico means. in other words, all of their complaints really go to the fact of rico and the operation of rico, and not good reasons for severance. so one good reason not to sever is exactly as you say, so witnesses don't have to go through the trial again and again. judicial economy and the like. judge mcafee was down with all of that, but to a limit. which is to say he's not going to go for one trial, the state's going to have one last shot at convincing him of that. but i think we're going to see at least two. for now, though, he's only dealing with this one on october 23rd. it looks like moss and freeman may have to tell their story twice, but it's part and parcel of trials, that even as they're separated will present the entire kit and caboodle of evidence because that's the conspiracy that all 19 are alleged to have participated in, notwithstanding that it might have just been discreet parts of the actual overt acts. >> chesebro lawyer scott grubman brought up the elephant in the room, right, arguing that this isn't about the 18 other people. this is about donald trump. you're also a trained attorney. give us your take watching this and i know that garrett touched on this, but about this unavoidable intersection of the legal and the political as this is playing out. >> yeah, in the political world, that's right. donald trump kind of stands alone. in the legal world and under the rico statute, they all stand as pierce, sidney powell, chesebro, donald trump, mark meadows, they are facing the same penalty. what we saw today provides a fascinating glimpse into the political ramifications for this reason, understand the question of severance is happening in two different places, one is the class of defendants among the 19 that want a speedy trial, chesebro, powell, and possibly eastman. the judge appeared to say, we're going to likely allow two trials, but among that class who has asked for a speedy trial, chesebro and powell, we're going to keep them togetherment that was the ruling today. even though donald trump and the other 17 may succeed in delaying the trial a long time, which benefits donald trump politically, what could change is a verdict in the case of the first two, maybe three. powell and chesebro. what happens if there is a conviction going into republican primary season of chesebro and powell or, chris, more intrigueingly, what happens if there's an acquittal. does that undermine the political narrative about the charges being brought against donald trump, and allow him to say to the american people, we know in the first case, the charges don't stick. doesn't mean he's legally exonerated if powell and chesebro are acquitted but it gives donald trump a narrative that may happen before the primary is over. >> one of the things we know about donald trump is he likes to counter program, and i understand, garrett haake, he gave an interview while this was going on and being televised around the country, and i think you can stream it around the world. what do we know about what donald trump was saying as we were all watching this hearing. >> yeah, a little bit earlier today, rather, the former president did the interview with hugh hewitt on the radio, wide ranging interview, but he did talk at length about the various legal issues here, and hewitt went after him on a couple of points about his lawyers and his relationship with them, and about the idea he would want to testify in his own defense. it's not clear from the transcript if mr. trump was being very specific about which of these cases, but he does say absolutely he would like to take the stand and he looks forward to it, talking about the cases and the hoaxes against him and the opportunity to clear his name by testifying in his own defense. it's worth pointing out when he was president trump, donald trump talked in the same way about answering questions from robert mueller, the special counsel who was investigating him, the idea of a sit down interview never fully came together. now, the circumstances were very different there, but his openness to appearing in his own defense may not translate to him actually taking the stand, a decision that would be made with his attorneys but he's leaving the prospect out there. if he's talking about it here in georgia in what's likely to be the most watched televised trial to have the 21st century so far as we're into it, whenever it gets started, that would be a pivotal moment. >> without a doubt. we should also say as we were looking in a parking garage, that was powell's counsel leaving the courthouse. what you're seeing otherwise is i believe that's tape, right, because he's already left the courtroom. the judge has left the courtroom. let me go back to that idea, and i want to get several of you to comment on this. we know what the conventional wisdom is, you should be in a pretty desperate situation to put the defendant on the stand. and i'm just talking about any defendant. i'm not talking about donald trump who is a unique person. having said that, as much as people on this program and others have argued against it, we also know, and garrett knows this having covered him, donald trump is someone who wants to get his story out there. who knows if there are millions and millions of people watching he can see that as an opportunity. talk from a legal perspective, carol, and i'll get you in on this, harry, about the idea that donald trump would suggest that maybe he would think about wanting to testify. carol. >> well, first, to testify you actually have to get to trial, and i think we have seen that the likelihood that donald trump in this case in georgia is actually going to get to trial before the 2024 election i think is actually those chances are pretty slim, but he will, if that march 4th trial at a time in washington, d.c., the special counsel's case holds, and donald trump is the only defendant in that case, he may have to make that decision. donald trump originally once long ago said why would you take the fifth amendment and not testify unless you were guilty. i think that he then actually did decline to testify in the new york state attorney general's deposition. now i understand why you wouldn't testify because all of these proceedings are so unfair. so he has exercised a willingness to change his position on that, and i think what you'll hear from most defense attorneys is that decision, whether to put the defendant on the stand and testify in his own defense is one of the most fraught and difficult decisions they have to nak in conjunction with the defendant, and often that decision is not made until the last minute. >> fraught and difficult, harry, and then you add in the factor that the person we're talking about is donald trump. >> yes. two legal points. first, he may puff in public. axiom number one. trump will not testify. cannot testify. will not testify. period. second, i just want make the legal point. chesebro went for a speedy trial to separate himself out. he didn't want a speedy trial, he wanted a solo trial. he thought he had a clever move getting in the lifeboat, and sidney powell is jumping in with him, and john eastman. he's chagrinned and foiled. he has to face the jury with these very unsympathetic codefendants. it's exactly what he wanted to avoid. these are two characters he would not want to be joined at the hip with, and now he is going to be. >> i want to bring in msnbc host and legal analyst, katie phang who was inside the courtroom for the entire hearing. she just got to a camera. we all saw what happened. it's different being inside the room, feeling it, being able to watch all of the people. give us your impressionings, first of all, being in the room as well as your legal take aways, katie. >> reporter: it was an impressive show of force. the state of georgia being represented by eight attorneys, four of which sat in the first row of the courtroom, four of which sat at counsel's table. one is a gentleman by the name as john floyd, known as being an expert in rico. he did not make any of the oral arguments but you can bet your bottom dollar he had insight as well as a part in the preparation for today's hearing at counsel for the defense, you had two lawyers on behalf of kenneth chesebro, they tried, they as in the defense attorneys, tried to put together, as much as they could, but trying to keep themselves apart in terms of their interest, an argument to the court, to make sure that their cases were tried separate from the remaining 17 defendants. chris, i would note, though, the emphasis on both sides is that this is ultimately an issue of discretion for judge scott mic afee, who is the presiding judge. it's up to the judge to decide whether or not it is appropriate to sever the defendants in this case from the other defendants. notably as you've just heard from your astute analyst so far in the show, at the end of the day it's going to end up being chesebro and powell for now being tried together on october 23rd. why? because the judge said there was not a legal basis to make sure the two of them are separated but the judge as asked for post hearing briefing from the state as well as the defense as to whether or not it's appropriate to move forward with one 19 defendant trial or parse out those two defendants, chesebro and powell and have a separate trial. one last quick thing, chris. a good thing that the judge brought up which the state has to contend with is the following. there's a logistical nightmare that comes in when you prepare for any trial, civil or criminal, especially criminal. pretrial motions, jury selections, they have to be complicating how much time it will take to get that to happen, and the judge said to the state, what's happening with the removal motions, the removal of some of these defendants to federal court. how does that impact double jeopardy once a jury is sworn in. there's going to be a lot we expect to see in terms of legal arguments. >> there was one of those back and forths that we heard during this trial about the timing and of course everyone is waiting to hear exactly what that's going to be. let me play that, and i'll get your thoughts on other side. >> the state's case may take four months, but voir dire with 19 testifies attorneys is going to be a different animal than voir dire with two. i don't think saying they're both going to be four months no matter how many defendants involved would be completely accurate. is that fair? in terms of who can object. any particular question that's asked. the side bars that are requested. just the sheer physical limitations if one attorney gets sick, is it really so confidently say that each trial is going to be exactly four months, no matter who is involved? >> i don't think we can say exactly. i think it cuts both ways. if we had 19 people tried at one time, you have a witness up, and let's say they're subject to 19 cross-examinations, each of those 19 is not going to be the same full length cross-examination. so you have kind of a shorter, if you took them all together. you might have a shorter time for that witness on the stand with 19 people, versus if you have 19 trials of one person. and i'm going to the extremes to demonstrate the point. >> we'll get back to that but outside you're seeing the two attorneys for kenneth chesebro, let's listen. >> not only this case but the case that was indicted yesterday as you may have seen. 61 defendants, including lawyers who are simply trying to raise bail for some other defendants. got indicted in a rico case by the attorney general's office. there's a rico trial going on right now as we speak against a bunch of rappers who really have no other connection other than being a part of the same record label, and now you have this case where they're trying to connect three or four very different alleged conspiracies into one. i would argue it's the weaponization of the georgia rico statute, and implore the general assembly as they get back into session to avoid this type of weaponization in the future. >> do you know if this will actually be going to trial in october 23rd or mr. chesebro and ms. powell as well? >> as the way it is right now, yes, mr. chesebro and ms. powell will be going to trial october 23rd. as the judge indicated, there is a very significant unknown out there, which is the possibility of removal. that's up to a federal judge. judge jones. judge jones has not yet issued his decision. if judge jones were to remove this case, i think there's an argument that all of the defendants at least initially are removed alongside the ones who are entitled to removal. in that circumstance, you might expect us to try to file a potion. to be quite clear, this is where we want to be. >> do you think this will make it to the election? >> i hope not. that's only on behalf of my client, and let me make something else clear. my client is ken chesebro, okay. my client's not a politician. my client has never run for public office. my client has never met or talked to the vast majority of his alleged coconspirators. i am not disrespecting any other strategy for any other defendant to get more time. if they want more time, they're entitled to it, and every defendant and defense lawyer has their own circumstances they have to deal with. all we can talk about is our circumstances and the circumstances of our client mr. chesebro, and we are ready to go forward to trial on october 23rd. i want to say another thing, the state consistently says that they're ready to go to trial as well. the state responded to our speedy trial demand, and everyone said, oh, they called mr. chesebro's bluff. i want to make something clear, there is no bluff. we are statutorily entitled to a speedy trial, and that's what we asked for. with all due respect to the district attorney's office, they had absolutely no choice but to say okay. now to say that all 19 defendants should be tried together, including ones that don't want to avail themselves of the speedy trial demand is nonsensical. >> reporter: have you spoken with mr. chesebro. >> reporter: if it's you and powell, how long do you need for trial, and how many witnesses do you anticipate? >> i'm not trying to sound too much like a defense lawyer, but quite frankly, we think there's a good chance the state's case will be dismissed on a motion for a directed verdict after they rest, so we're hopeful we don't need much time at all, but we haven't made those decisionings. -- decisions. the state has the burden. the state must prove their case and every element of their case beyond a reasonable doubt. mr. chesebro has no burden. that's not to say one way or the're if we're going to plan to put up witnesses. we are waiting for this hearing to decide who we were going to be sitting next to to make the strategic decisions. >> have you spoken with mr. chesebro after today's decision, and what was his response? >> i have not spoken with mr. chesebro. thank you all so much. we appreciate it. >> obviously he did not get what he wanted. he did not get their attempt, they were foiled in their attempt to separate kenneth chesebro's case to sidney powell's. let me go back to you, christian. one of the things we heard when fani willis first brought this case was just how broad the georgia rico statute is. you just heard him say this is about the weaponization of that rico statute. it's not something you haven't heard before but respond to the substance of his argument? >> i don't think there's much substance there. anytime you're on the side of a rico case they're on, you're going to throw everything against the wall and see if it sticks. and i think it's always very interesting that i know we aren't really talking about rudy giuliani today, but he was a prosecutor in one of the biggest rico cases in u.s. history with the crime mob family in new york, and now he's one of the members of this rico charge. rico cases, they aren't new for d.a. fani willis. she has been a part of one of the most famous ricos in the history of the country, the atlanta public school cheating scandal. it's something her and her office are familiar with, and how to utilize it and make sure they don't get thrown out at the early stages on. i think she's going to have enough to go forward comfortably. the biggest hurdle i see is the time frame. this case is going to go on a lot longer than people were anticipating or thinking because she has another rico case going on right now in the ysl trial. so i think having two at the same time is going to be very burden some from her office, but i don't think she's going to have any issues going forward the way she thinks that she needs to go forward to get a conviction. i think we're going to see some defendants enter pleas early, and i think that's going to strengthen her case. those who plead early on will get better trials. that will strengthen the state's case, and ultimately we'll have to wait and see what donald trump plans to do. >> time line notwithstanding, carol, scott grubman talked confidently about file ago motion for directed verdict. tell people what that is, and what the chances are that that happens. how rare a directed verdict might be. >> as chesebro's attorney pointed out, the burden of proof lies on the state to prove allegations beyond a reasonable doubt, and in order to do that, they have to put on the evidence in they're case in chief. often what happens is after the state has rested its case and before the defense case starts, the defense may raise a motion saying that even in the light most favorable to the state, if you assume every witness was testifying truthfully and same with the state, expected them to stay, and every document showed what the state argues, even in a light favorable to the state, it fails to meet the elements required for a conviction in the case. that's what he means by a directed verdict. it means that the judge can say, yes, there was just an insufficiency of the evidence produced here, and there's no way that the jury could find this defendant guilty beyond a reasonable doubt, and enters judgment of acquittal before the defense has to put on the kats case. >> the first view we have had into the courthouse in georgia, and we're going to have another one of these every week. we're going to have a chance to get updates on all of this. garrett haake, christian smith, carol lam, david jolly, i cannot thank you enough for sitting and listening to this hour and 20 minutes, and giving us your expert analysis. that's going to do it for us this hour. make sure to join us for "chris jansing reports" every weekday 1:00 to 3:00 p.m. eastern right here on msnbc. our coverage continues with "katy tur reports" right after this break. reports" right after this break (jen) so we partner with verizon to take our operations to the next level. 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