Fulton County Superior Court Judge Scott McAfee issued a protective order on Thursday that would keep “sensitive” materials in the high-profile racketeering case against former President Donald Trump under seal, after video statements of four defendants who took guilty pleas were leaked to the media.
He explained that the order was in the interest of preventing additional delay in all parties accessing discovery in the case, noting that state prosecutors had wanted to limit viewing of video proffers after the leaks.
“Discovery is designed to avoid unnecessary surprise at trial and level the playing field. A party may be tempted to delay disclosure or avoid reducing items to documentary form if the possibility of public vetting is ever present. Such a logistical roadblock was already demonstrated in this case when the State, in reaction to the public release of the recordings of recent proffers given by four Defendants, indicated that all subsequently produced videos would only be viewable by defense counsel in-person,” the judge wrote.
Video Leak
In August, Fulton County District Attorney Fani Willis announced a grand jury indictment of President Trump and 18 others, charging them with violating the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act and 40 other felony crimes.Since then, four of the defendants have pleaded guilty: Georgia bail bondsman Scott Hall, attorney Sidney Powell, 2020 Trump Campaign attorney Kenneth Chesebro, and former Trump attorney Jenna Ellis.
As a part of those plea agreements, the defendants had to record video statements, or proffers, with the district attorney’s office.
During the Wednesday hearing, attorney Jonathan Miller, representing defendant Misty Hampton, said on the record that he had been one of the leaks, without indicating whether he knew of another party leaking the videos.
He explained that the guilty pleas—which happened before the judge during livestreamed proceedings—were sent out for all to see. Yet the circumstances and rationale behind those pleas were kept secret from the public, and he wanted those motives to be made known. In fact, some of the defendants pleaded guilty to entirely different crimes than charged in the original indictment, in some cases having multiple felonies bargained down to misdemeanors. None of the four defendants will have to serve jail time, but instead probation, and pay fines.
Mr. Miller said the public pleas gave the remaining defendants the appearance of guilt, but the video statements revealed, in his opinion, that his client was not in fact guilty of the crimes she was charged with.
“All four of those people that did their proffers, they stood in front of you, they did their plea, and it was all recorded and sent out there for the world to see,” Mr. Miller said. “To hide those proffers that show all of those underlying things that went into those pleas misleads the public as to what’s going on.”
Ms. Hampton was a Coffee County election official and had been charged with the same counts that Mr. Hall and Ms. Powell, who both took guilty pleas, were charged with.
Protective Order
The prosecutors had proposed a protective order even before the leak, with several defendants agreeing with the proposal and working together with the attorneys to draft an order. The video leak prompted an emergency motion to renew the request, and an emergency hearing and order.Judge McAfee noted during the hearing and in his written order that, historically, the public and press do not have the right to discovery materials. He reasoned that the revealing of these materials could also improperly influence jurors, even if there is no “physical or economic harm to any particular witness” usually required in a protective order.
“One party may believe a piece of evidence should be considered by the public at large, while another finds it prejudicial and damaging to the jury pool,” the judge wrote, in favor of issuing a protective order that would then prohibit “inadmissible” materials from being shared.
“The Court has an interest in ensuring that all parties retain their right to a fair trial before an unbiased jury, a process that could become unattainable should the public be allowed to vet every piece of unfiltered evidence months before trial,” he wrote.
“The likelihood of harm in this case is severe, as extensive media coverage guarantees broad dissemination of any disclosed discovery materials.”
The order won’t cover any materials that have already been made public or will become public through other venues, such as other ongoing court cases. Both parties will review discovery materials to be marked “sensitive,” and either party can designate materials as “sensitive” and thus not available to the public. If the parties cannot agree on whether the materials should be designated sensitive, the court will decide. The order does not outline penalties for disclosing sensitive materials.
