Judge to issue protective order in Georgia Trump case

Lawyer acknowledges sharing videos that prompted dispute.
Judge Scott McAfee appears in a hearing on the Trump indictment at the Fulton County Courthouse in Atlanta on Wednesday, November 15, 2023. (Arvin Temkar / arvin.temkar@ajc.com)

Credit: arvin.temkar@ajc.com

Credit: arvin.temkar@ajc.com

Judge Scott McAfee appears in a hearing on the Trump indictment at the Fulton County Courthouse in Atlanta on Wednesday, November 15, 2023. (Arvin Temkar / arvin.temkar@ajc.com)

A Fulton County judge Wednesday said he would draft an order protecting some evidence from pre-trial disclosure in the Donald Trump election interference case — even as a defense attorney admitted he had already leaked witness interviews to the news media.

Prosecutors and most defense attorneys in the case tentatively agreed to an order that would allow some evidence shared during the pre-trial discovery process to be labeled “sensitive” and withheld from public scrutiny, at least initially. At a hearing Wednesday, Superior Court Judge Scott McAfee indicated he would draft a protective order based on the proposed compromise.

McAfee’s decision came over the objection of news organizations – including The Atlanta Journal-Constitution – that argued the evidence in the case is of tremendous public interest and should not be withheld.

The judge’s decision followed a courtroom admission by Jonathan Miller — an attorney for defendant Misty Hampton — that he leaked some previously undisclosed videotaped testimony to the news media earlier this week. Miller said the testimony aided his client’s case and “the public needs to know that.”

McAfee admonished Miller and cited the leak as evidence of the need for a protective order. “It seems like having open (evidence) files for everyone to start litigating the case before we actually get inside of a courtroom comes with a lot of side effects that I don’t know if we’ve thought through,” McAfee said.

Miller’s courtroom confession was the latest twist in District Attorney Fani Willis’ criminal case against Trump and the 14 remaining defendants accused of illegally attempting to overturn Democrat Joe Biden’s 2020 victory in Georgia. The 41-count indictment describes each defendant’s role in an alleged “criminal enterprise” that Willis says violated state racketeering and other laws.

Wednesday’s hearing illustrates the intensity of the public spotlight on the Fulton County case, one of four criminal indictments Trump is facing. It also shows how difficult it will be to manage a small army of defendants and attorneys.

“I think we all, when we signed up for the case, agreed to some level of aggravation, but here we are,” McAfee said at one point.

Four defendants — Kenneth Chesebro, Jenna Ellis, Scott Hall and Sidney Powell — have pleaded guilty to various charges. As part of their plea agreements, they spoke with prosecutors in videotaped interviews that could offer a glimpse of their future testimony as prosecutors pursue charges against the remaining defendants.

Earlier this week, several news organizations — including the AJC — obtained copies of the videotaped interviews and published highlights. That prompted Willis to renew a request for a protective order prohibiting the release of all evidence prosecutors turned over to the defendants as required by law. Willis argued the interviews could be used to harass or intimidate potential witnesses or taint the jury pool for the trial.

Defendants objected to Willis’ broad request. They said she had offered no evidence the video interviews could be used to intimidate witnesses.

The defendants proposed a less restrictive order that would require prosecutors to label sensitive evidence that should not be disclosed. Their proposal would give defendants 14 days to contest the “sensitive” designation.

On Wednesday, prosecutors agreed to adopt the defendants’ proposed order. But attorney Tom Clyde — representing the AJC and other news outlets — argued that even the narrower protective order was not warranted. He also cited the lack of evidence that witnesses faced a substantial threat of physical or economic harm. And he said the order as proposed would allow prosecutors and defendants to conspire to prevent disclosure of information of tremendous public interest based on vague criteria, in violation of state law.

“It’s not a matter of whether both sides agree” to suppress the evidence, Clyde said. “It’s a matter of whether the (legal) standard has been met.”

McAfee was skeptical of Clyde’s arguments. He said the court had the authority to keep some evidence secret until it was determined to be admissible at trial. The judge indicated he would draft a protective order based on the model proposed by the defendants but would consider Clyde’s arguments.

Meanwhile, Wednesday’s hearing addressed the mystery of who leaked the video interviews to the news media. Prosecutors initially suggested attorneys for defendant Harrison Floyd had leaked the videos. On Wednesday, Floyd’s attorney denied the allegation.

In court, Miller said he provided the interviews to a single news outlet, which he did not identify.

Miller said he believed the public had a right to see the interviews. He said some of them contained information that would help his client, former Coffee County elections supervisor Hampton. And he said keeping them secret allowed prosecutors to “set the tone for the entire trial without giving consideration to the other side.”

Nonetheless, Miller said he admitted his actions in court “to make sure that nobody else gets blamed for what happened, and so that I can go to sleep well tonight.”

Staff writer Tamar Hallerman contributed to this report.