Fulton County Superior Court Judge Scott McAfee said Wednesday that he plans to bar the public release of “sensitive” evidence in the Georgia election subversion case against former President Donald Trump and over a dozen others after key video evidence was leaked earlier this week.
“Until we decide what’s going to be relevant and admissible, this case should be tried, and not in the court of public opinion as much as possible, but before a jury … and with evidence that has been vetted and approved, ” McAfee said during a hearing Wednesday in Atlanta.
Fulton County prosecutors asked McAfee to impose a so-called protective order that that would restrict how defendants can handle materials they receive in the discovery process after videotaped interviews of defendants who struck plea deals with prosecutors were leaked to the press.
The leaked videos featured on-camera statements from defendants who already pleaded guilty: Former Trump campaign attorneys Jenna Ellis and Sidney Powell, pro-Trump attorney Kenneth Chesebro, and Atlanta-based bail bondsman Scott Hall. They sat for the videotaped proffer sessions as part of their plea agreements – and the videos show them providing information on the attempts by Trump and others to overturn the 2020 presidential election.
Jonathan Miller, an attorney for former Coffee County elections supervisor Misty Hampton, took responsibility on Wednesday for the leak, telling the judge that he wanted to make sure that “nobody else gets blamed” and so he could “sleep well tonight.” Miller said his client, a co-defendant in the case, believes the public has a right to see the videos and know the facts.
“To hide those proffers, that show all the underlying things that went into those pleas, misleads the public about what’s going on,” Miller said. “Two of those defendants were directly related to my client. And I don’t believe that either one of those hurt my client. If anything, I believe they helped my client, and the public needs to know that.”
Trump, along with various other co-defendants, proposed a protective order that would require the district attorney’s office to designate specific evidence that contains sensitive materials ahead of time, while providing the defendants up to 14 days to contest that designation.
An attorney representing a coalition of media outlets, including CNN, argued Wednesday against the need for a protective order. The attorney, Tom Clyde, said it was in the public’s interest to be informed about the case, especially about newsworthy information, and argued that the court shouldn’t be “imposing a limit on some litigants sharing that information.”
But McAfee was not swayed.
“There could be things (in discovery) that are completely inadmissible that a jury should never hear, that you’re saying should be on the front page,” MaAfee said.
On Tuesday, Fulton County prosecutors filed a motion that pointed to an apparent admission via email from a lawyer representing defendant Harrison Floyd, indicating they were the ones who shared the proffer videos.
“It was Harrison Floyd’s team,” Todd Harding, Floyd’s attorney, said in an email chain with the DA’s office.
In a subsequent email, Harding called the prior email “a typo,” according to court filings. Floyd’s legal team reiterated at Wednesday’s hearing that they didn’t leak the videos, saying they meant to say they were “not” the source.
Both Hampton and Floyd have pleaded not guilty. Hampton was charged in connection with the breach of voting systems in Coffee County, while Floyd faces charges related to the alleged intimidation of an Atlanta election worker.
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