Prosecutors said the leaks were tantamount to witness intimidation while attorneys for some of the defendants countered the DA’s proposed protective order would restrict their ability to mount a robust defense.
Ted Goodman, a Giuliani political adviser, said Willis “wants to shut everyone up by weaponizing the protective order process, so the defendants can’t properly defend themselves and so that her office is the only one that can continue to leak.”
Ellis, Powell, Hall and Chesebro were charged alongside former President Donald Trump, Giuliani and 13 others in August for their alleged roles in working to overturn Georgia’s 2020 election results. Each of the four pleaded guilty to lesser crimes over the last six weeks in exchange for no jail time and their cooperation in the case.
Prosecutors had previously asked for a protective order limiting the disclosure of discovery materials — if approved, a judge could hold a violator in contempt — but McAfee didn’t act on their request. The remaining defense attorneys, who represent the other 15 defendants in the case, all received copies of the proffers as part of the discovery process earlier this fall.
Protective orders are common in civil cases but less so in criminal matters. When implemented, they limit what evidence defense attorneys can share with outside parties, including potential witnesses who could help their clients.
Hours after the DA’s office requested an emergency order, McAfee scheduled a hearing on the matter for Wednesday afternoon.
During a Q&A at the Washington Post Live’s Global Women’s Summit on Tuesday, Willis expressed her displeasure that the interviews were released.
“Surprising, no. Disappointing, yes,” Willis told an interviewer.
In their filing, prosecutors said the release of the recordings “is clearly intended to intimidate witnesses in this case, subjecting them to harassment and threats prior to trial, constitutes indirect communication about the facts of this case with codefendants and witnesses, and obstructs the administration of justice, in violation of the conditions of release imposed on each defendant.”
In a separate court filing, attorneys for defendant David Shafer argued what Willis proposed was too broad. They said Willis failed to meet her legal burden of showing a “substantial threat of physical or economic harm to a particular witness” and urged McAfee to oppose the DA’s request.
Shafer’s team provided the text of an alternative protective order should McAfee deem it necessary, which it said was backed by attorneys for Trump and four other defendants. Their proposal would require the DA’s office to designate certain evidence as ‘sensitive materials’ and give defendants 14 days to contest the designation.
The DA’s office said that going forward, it would not produce copies of proffers to other defense teams as part of the discovery process to prevent future public disclosure. Instead, it said defense teams would have to visit the DA’s office to view the recordings confidentially.
“They may take notes, but they will be prohibited from creating any recordings or reproductions,” prosecutors wrote.
While some attorneys pointed fingers at the DA’s office, prosecutors suggested the legal team for defendant Harrison Floyd was behind the leak, citing an email exchange with defense attorneys, the DA’s office and the court. In it, one of Floyd’s attorneys said “it was Harrison Floyd’s team” that leaked the interviews. The DA’s office noted, however, that Floyd’s attorney later followed up and said his prior email was a “typo” and that his team did not communicate with the media.
Floyd himself pushed back on X, the social media site previously known as Twitter. “Look,” he tweeted at Willis, “if I was going to leak something, it wouldn’t be (about) Sidney Powell or Jenna Ellis.” He instead shared audio featuring Ruby Freeman, the former Fulton election worker he is accused of harassing as part of the case.
“I wouldn’t hide behind a journalist/source privilege,” he continued. “You would know it’s from me, like caller ID.”
Staff writer Tia Mitchell contributed to this article.