Tuesday afternoon, Fulton County Superior Court Judge Scott McAfee heard arguments and testimony regarding revoking the bond of Harrison Floyd—who was indicted alongside former President Donald Trump for allegedly interfering with the 2020 elections—after the defendant made several social media posts in which he tagged witnesses in the case.
The judge said there was a “technical violation of Mr. Floyd’s bond,” and that communications he made “wound up before the eyes and ears of potential witnesses and codefendants.”
“But not every violation requires revocation,” Judge McAfee said.
He ruled that the bond was not written specifically enough in light of social media communication workings.
“It’s very clear that this bond needs to be modified and I think it needs to specifically prevent any public comment concerning Ms. [Ruby] Freeman, concerning her daughter, and concerning other witnesses that need to be included,” the judge said, noting that even without communicating with specific individuals, the evidence shows that merely mentioning them on a large social media platform can induce the same effect.
He requested both sides to submit proposals to modify the bond, and added that the prosecution could file another motion of revocation should any defendant violate their conditions again. They met off-record to do so immediately after the ruling in hopes of coming to a new agreement the same day.
“The trial court has to balance the rights of the accused, as well as the public safety interests that are raised by any particular case,” Judge McAfee said. “But I'll note that a defendant is generally allowed to criticize the merits of a case to say that the prosecution doesn’t have a case, to challenge the evidence, to speak his mind. And I don’t see anything in this consent bond order that limited the general criticism of the state’s case.”
After reviewing arguments and evidence, Judge McAfee ruled that Mr. Floyd had not engaged in behavior such as posting the address of a witness, which the conditions were meant to prevent, and that he did not call for things to be done to any witness.
Modifiying Bond Order
After about an hour, the parties returned to the trial courtroom on the record with proposals for a modified order.The defense had wanted to include a provision that would allow Mr. Floyd to respond and defend himself if a potential witness criticized him first, and a provision prohibiting the state prosecutors from criticizing Mr. Floyd in public as well. The prosecution had wanted to prohibit statements about codefendants in media and social media, including private social media posts.
Judge McAfee noted that one of the codefendants is a leading candidate for the 2024 elections, and asked whether the parties thought that would be an issue if Mr. Floyd wanted to talk about general politics. The original order had prohibited contact with codefendants in relation to the case.
The modified order ultimately added conditions that Mr. Floyd cannot “contact” codefendants in addition to not being allowed to communicate with them except through counsel. He will also need to delete posts he had made about former election worker Ruby Freeman.
The prosecutors’ proposed order took place, and the judge said “in a week or two” he may call another hearing to update the order.
Hearing
After debating at length over how X, formerly Twitter, functions, defense attorneys argued Mr. Floyd did not violate any of his release conditions at all, and prosecutors argued he knowingly violated three of those conditions in a hearing punctuated by animosity.Mr. Floyd was released on $100,000 bond, which contained seven conditions including prohibiting him from intimidating codefendants or witnesses in the case, and to not communicate with codefendants or witnesses except through counsel. He was indicted in August along with 18 codefendants, four of whom have since taken plea bargains, and faces eight to 30 years in prison if convicted.
In recent days, Mr. Floyd made several social media posts referencing others involved in the case and the leaked videos statements of the defendants who took guilty pleas, prompting prosecutors to file a motion seeking to revoke his bond. His attorney argued in court that prosecutors could have called him and let him know the posts were a problem, instead of filing the motion.
Fulton County District Attorney Fani Willis, who is prosecuting the case, called on three witnesses arguing that Mr. Floyd communicated with and intimidated witnesses in the case in violation of his release conditions. The prosecutors only need to prove Mr. Floyd violated one of the seven bond conditions to call for the revocation his release.
Mr. Floyd had previously spent five days in jail, after he turned himself in without first negotiating bond. He was the only defendant to be jailed.
The judge pointed out that each of the conditions had several points to them, and the major issue at hand was whether Mr. Floyd had crossed into witness intimidation.
Testimonies
The testimony got granular, as the defense pushed prosecutors to prove out individual social media posts made on X, formerly Twitter, were made by Mr. Floyd, and attorneys argued over how the social media platform works.Mr. Floyd’s attorneys argued that he never directly messaged witnesses, while prosecutors argued that by tagging witnesses’ X accounts, they received notifications of those messages, constituting “communication” with witnesses, including the Chief Operating Officer in the Office of the Georgia Secretary of State Gabriel Sterling, Georgia Secretary of State Brad Raffensperger, and former defendant and now witness Jenna Ellis.
Michael Hill, assistant chief investigator in Ms. Willis’s office, testified that after he contacted Ms. Ellis’s counsel, he received a statement from Ms. Ellis, who said she saw the posts she was tagged in a day or two after they were published, as well as the messages of harassment from commenters on those and other posts.
Attorneys then argued that they have not received lists of potential witnesses, though they would have been alerted that Ms. Ellis is a witness for the state after she took a plea bargain. The defense had also criticized the disorganized manner in which prosecutors handed over discovery, and the fact that prosecutors had put out a statement with a typo that misled the public to think Mr. Floyd was the source of the proffer leaks.
It took about an hour and a half to get through questioning the first witness.
Mr. Sterling was the second witness, and testified to the fact that he saw these posts because he was tagged in them.
Chris Kachouroff, attorney for Mr. Floyd, asked whether he was intimidated from testifying due to Mr. Floyd’s posts.
Mr. Sterling said he was subpoenaed to testify for the motion hearing, and said as a public figure the criticism Mr. Floyd posted about him is “par for the course.”
Mr. Kachouroff asked whether Mr. Sterling would contact law enforcement if he saw a threat directed at him, and he answered that he would if it rose to the level of a threat. He did not contact law enforcement after seeing the post in which Mr. Floyd tagged him.
Von Dubose, legal counsel for former election worker Ruby Freeman, another witness in the case, testified that Ms. Freeman employs a threat monitor because she and her family have received death threats and other threats since the 2020 elections. He was made aware of Mr. Floyd’s posts about Ms. Freeman through co-counsel, who called for a meeting to determine whether “any measures need to be taken” to keep his client safe.
Public Comments?
Mr. Kachouroff argued that Mr. Floyd did not violate the conditions at all.“Threats and intimidation are well defined in Georgia law,” Mr. Kachouroff argued, saying these are objective standards, not subjective ones. “None put a reasonable person in fear for their safety.”
He added that on X’s own help rules, the tagging function is used to reference users, not to directly communicate with them.
“Sure, but the practical effect is that the person gets a notification of the mention, do they not?” the judge said.
Mr. Kachouroff argued that Mr. Floyd’s post referencing Ms. Ellis and saying “give the money back” was one of several such messages as shown by a simple search. He added that with 1 million followers on X, Ms. Ellis could reasonably not see any particular message, and thus it was not direct communication.
He also argued that these posts were not “about the facts of this case” as per the release conditions, to which the judge did not agree, as the posts were about her proffer statement. Mr. Kachouroff pushed back, arguing that under the conditions as he understood, the two could have a dinner conversation together, so long as they weren’t talking about the case. He argued that the point of those specific bond conditions were to “prevent collusion,” which was not an issue in this situation.
“It’s a public comment, he’s allowed to do that,” Mr. Kachouroff said. “Ms. Ellis won’t even be a witness against us ... not only that, we don’t even have a witness list.”
“If we don’t like that, we should change the bond order,” he said, pointing to the fact that President Trump’s release conditions specifically prohibit him from making social media posts about the case, unlike the rest of the defendants. He said the order could just prohibit Mr. Floyd from “communicating to” as well as “communicating with.”
“I think the Twitter aspect might be confusing it,” Judge McAfee said, using the hypothetical of Mr. Floyd writing a letter to Ms. Ellis knowing she gets a million letters a day. Mr. Kachouroff argued the difference is that X is a public forum, and Mr. Floyd has the right to make political speech in public.
‘Lunacy’
Ms. Willis said the defense’s argument was “lunacy” and “absurdity.” In response to not knowing that posting about Ms. Ellis’s proffer and tagging her had to do with the facts of the case, she said “how dense do you have to be?” and claimed Mr. Floyd was being disingenuous. She said that the defense has grand jury transcripts of Mr. Sterling’s testimony specifically because he is a witness.She argued that Ms. Freeman, a “little old lady,” has faced threats for years after the 2020 elections, and that Mr. Floyd reignited these threats. Ms. Willis said Ms. Freeman had been mentioned some 40 times in the indictment, and the defense could not argue they did not know she was a witness.
The judge pointed out that Ms. Freeman was not tagged in the posts, and asked whether merely referring to her would count as communicating. Ms. Freeman does not have a social media account.
“When you put something on a social media page that’s reviewed by 400,000 and you put it in an open space, you have the ability to indirectly communicate with Ms. Freeman,” Ms. Willis said, adding that it would have been a different issue if Mr. Floyd had a private page.
“He doesn’t get a ‘oh I’m sorry, after I’ve already intimidated the witnesses in the case,’” Ms. Willis said. “You put someone in danger as a result of doing it and now you need to be held accountable for it.”
“The entire purpose of tagging someone is so that it does hit their feed and they see the post,” Ms. Willis said, adding that it doesn’t matter whether it was direct or indirect, it was “communication.”
She argued that Mr. Floyd poses “a significant risk of committing a felony pending trial” as well as further intimidation of witnesses and obstruction of justice, and that he should be remanded the same day.
During a break, defense attorney John Morrison told his client Mr. Floyd that Ms. Willis “came down here and argued herself, that says something.”
