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Fulton County Superior Court Judge Scott McAfee (Fox 5 Atlanta/YouTube screengrab), Ken Chesebro (Fulton County Sheriff’s Office)
If you thought you’d heard the last of the term “special master,” you were sorely mistaken.
Ken Chesebro, a lawyer who drafted a legal memo asserting that the 2020 election could be overturned by then-Vice President Mike Pence on Jan. 6, on Thursday attacked the Georgia racketeering (RICO) case he faces by calling the warrant “defective” and seeking to exclude email evidence he maintains was illegally seized.
Why? Because a special master was never appointed to sift through the materials for potentially privileged communications.
Chesebro claimed the search warrant the Fulton County District Attorney’s office served on Microsoft for his emails was in violation of the Official Code of Georgia Annotated (OCGA) § 17-5-32(c), a statute that outlines rules for issuing a search warrant “for any documentary evidence in the possession or custody of an attorney who is not a criminal suspect.”
The lawyer’s lawyers maintained in a footnote that there’s “no basis” to the idea that Chesebro was a “suspect” at the time of the warrant was executed, since he “was one of dozens of witnesses who waived objection to appearing before the special grand jury, and prior to the indictment the District Attorney’s Office never gave any indication that he was regarded as a suspect, despite the fact that it did send formal target letters to co-defendants and unindicted co-conspirators in this case.”
The warrant for Chesebro’s MSN email account was signed on July 20 and Chesebro was indicted on Aug. 14, the lawyers said.
Beyond that, Chesebro argued, there was no probable cause that there was any real threat that documentary evidence would be destroyed.
“[Y]et on the date the warrant issued there existed no such concern, because months earlier Microsoft had archived all the e-mails in question, pursuant to a preservation order,” the motion to suppress continued.
Chesebro’s attorneys further said that warrant’s specification for sending the seized materials to a “filter team” within Fulton County DA Fani Willis’ (D) office “does not actually comply with the statute” because the warrant “failed to appoint a special master to accompany the person who served the warrant” and failed to “notify Mr. Chesebro or any counsel for him of the items being sought under the search warrant.”
From OCGA § 17-5-32(c)(1) [emphasis ours]:
At the time the warrant is issued the court shall appoint a special master to accompany the person who will serve the warrant. The special master shall be an attorney who is a member in good standing of the State Bar of Georgia and who has been selected from a list of qualified attorneys maintained by the State Bar of Georgia. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
The defendant argued that the “filter team” in question is a) not a special master and b) “never gave Mr. Chesebro or his counsel the opportunity to state that an item or items should not be disclosed due to privilege.”
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“No such items have been sealed, and no hearing has been provided as required by the statute,” the motion said. “The search warrant and its service are therefore defective, and the seizure — and any subsequent search of the requested materials — are illegal.”
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Chesebro’s lawyers accused prosecutors of making a “half-hearted attempt” at complying with the statute and suggested that was business as usual for the DA’s office:
The prosecution’s half-hearted attempt here to disguise its search warrant as compliant with O.C.G.A. § 17-5-32 is hardly the first sign of trouble on this front. The Fulton County District Attorney’s Office had already violated this Code section in another case less than two months before the search warrant here was issued. There can be little doubt that the Office will continue to violate the statute in future cases unless and until a judge applies the remedy for such conduct identified by the Legislature: exclusion of the improperly obtained evidence.
Chesebro is now asking Fulton County Superior Court Judge Scott McAfee to throw out “any evidence derived from the search warrant.”
Rudy Giuliani, John Eastman, and Chesebro, a trio of pro-Donald Trump attorneys, were indicted in the Georgia RICO case over the summer and accused together of unlawfully conspiring in December 2020 to “cause certain individuals to falsely hold themselves out as the duly elected and qualified presidential electors from the State of Georgia, public officers, with intent to mislead the President of the United States Senate, the Archivist of the United States, the Georgia Secretary of State, and the Chief Judge of the United States District Court for the Northern District of Georgia into believing that they actually were such officers.”
Chesebro recently filed a motion to dismiss the indictment under the Supremacy Clause of the Constitution and filed a demurrer, claiming the indictment goes “beyond the ambit” of Georgia’s RICO statute and “fails to allege a nexus between the enterprise and the racketeering activity as required to survive a demurrer.” Former President Trump himself embraced these arguments.
In the motion to dismiss, Chesebro argued that the alleged conduct at issue occurred after Dec. 8, 2020, the “Safe Harbor” deadline, so said conduct can only be addressed by federal law, not state law.
Chesebro described his pre-Safe Harbor deadline involvement as “limited” to “his drafting of a legal memo” — which was sent by email — to overturn the 2020 election.
“Even if Mr. Chesebro agrees that drafting this memo was improper (and not subject to attorney-client privilege), this memo in no way touched or concerned Georgia or its rules, processes, or procedures it had implemented as a result of its congressional delegation via the ECA,” the prior motion said. “Therefore, the charges against Mr. Chesebro are wholly invalid as drafted in the indictment and should be struck accordingly.”
Read the latest filing, the motion to suppress, here.
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