The Fulton county judge overseeing the 2020 election subversion case against Donald Trump and his top allies in Georgia issued on Thursday a protective order against the release of certain discovery materials, ruling that further leaks of evidence could taint the jury pool before trial.
The order entered by the Fulton county superior court judge Scott McAfee came after media outlets published details of videotaped statements that the former Trump lawyers Jenna Ellis, Sidney Powell and Kenneth Chesebro gave as part of their plea deals.
The order prohibits the release of materials designated as “sensitive” – which is expected to include evidence such as the videos of “proffer” interviews with the lawyers.
Protective orders are common in criminal cases but the stakes are particularly high because Trump is a co-defendant and because of the possibility that some defense lawyers, such as those who objected to the order entirely, will challenge certain materials being labelled sensitive.
Trump and his co-defendants pleaded not guilty in August to charges that they violated Georgia’s racketeering statute in attempting to overturn his 2020 election defeat in the state. But in the weeks that followed, a local Trump ally and those three ex-Trump lawyers became cooperators.
Prosecutors in the office of the Fulton county district attorney, Fani Willis, had urged the judge to enter an “emergency” protective order immediately after the publication of the proffer statements, arguing that the release of the evidence was aimed at intimidating potential trial witnesses.
The judge set aside that argument – the motivations for the leaks were unclear, not least because Ellis’s testimony was seen as damaging to Trump – and wrote in his order that he was concerned about the jury pool in Atlanta being exposed to evidence that might not be admissible at trial.
“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 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,” McAfee wrote.
The judge also declined an aggressive request by prosecutors to force defense lawyers to review sensitive discovery materials at the district attorney’s office in downtown Atlanta where they could only take notes, instead of continuing to make the evidence available electronically.
In the separate federal 2020 election subversion case brought against Trump in Washington, the discovery materials were subject to a protective order almost as soon as Trump was charged. But special counsel prosecutors have not forced Trump’s lawyers to only view the discovery in person.
Under the terms of the order, prosecutors can decide what materials they consider sensitive. Defense lawyers can contest that designation within 14 days. If both sides disagree on the appropriate designation, defense lawyers can seek a court hearing to challenge the label.
