An apparent paperwork oversight could jeopardize the case against one of former President Donald Trump’s co-defendants in the Georgia election interference case, although one former state prosecutor said the issue would “at worst” likely be considered merely “embarrassing” by the presiding judge.
An attorney for Kenneth Chesebro argued in a court filing Wednesday that Fulton County special prosecutor Nathan Wade was never qualified under state law to present the case to the Fulton County grand jury in the first place.
The motion to dismiss the charges against Chesebro says that makes Wade’s work on the case, including the indictment against Chesebro, “void as a matter of law.”
Chesebro, a lawyer himself, suggested that the Trump campaign put forth a slate of “alternate electors” to keep then-Democratic nominee Joe Biden from getting the majority of electoral votes necessary to win the presidency in the 2020 election, ABC News reported.
But Wade, the lead counsel for the prosecution, never filed oath of office paperwork required by the state prior to acting as public officer before the grand jury.
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“Nathan Wade, who has and continues to serve as lead counsel in this case — including during the presentment of the case to the criminal grand jury and at the time the underlying indictment was returned — was not an authorized public officer by Georgia law,” the filing read, according to ABC.
Scott Grubman, representing Chesebro, said that he had asked the prosecution for proof that the required oaths of office had been filed with the state. Shortly thereafter, the proper paperwork was submitted.
He argued that the judge should not treat the error as simple “technical noncompliance,” in part because the state legislature criminalized the behavior he accused Wade of engaging in.
It’s a misdemeanor in Georgia to “take an actions as a public officer without first taking and filing the appropriate oaths,” Grubman argued in the motion, according to ABC.
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“Because Mr. Wade did not file his oaths as expressly required by law, any actions that he took prior to filing the oath on September 27, 2023, are void as a matter of law,” the filing states. “This includes presenting this case to the criminal grand jury and obtaining an indictment in return.”
As a result, the motion argues, the indictment itself must be dismissed.
Chesebro’s trial is currently scheduled to begin on October 23, assuming this motion doesn’t result in its dismissal altogether.
And that possibility, according to Former Georgia prosecutor Chris Timmons, is remote.
“If he was not sworn in, at worst it’s embarrassing for the Fulton County DA’s office but it would not affect the case,” Timmons told ABC News.
“The Georgia Supreme Court has held unanimously that the presence at the grand jury of individuals who are not sworn assistant district attorneys will not vitiate an otherwise valid indictment,” he added.
The Fulton County DA’s office had no comment when asked by ABC News.
Chesebro’s attorneys have admitted that their client drafted “legal memos” outlining a strategy to create a slate of alternate electors, but have argued that he was acting in his capacity as Trump’s lawyer at the the time.
He and 18 others were indicted in August for various racketeering charges related to Trump’s alleged attempt to illegal hold onto power after losing the 2020 election to Biden. All defendants pleaded not guilty initially, although one has since accepted a plea deal in the case.
