by Stanley Dunlap, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

November 15, 2023

On Wednesday, a Fulton County Superior Court judge is set to consider District Attorney Fani Willis’ request for a court order prohibiting lawyers from releasing witnesses statements and other confidential evidence in the 2020 presidential election interference case.

Judge Scott McAfee has scheduled a hearing for Wednesday at 1:30 p.m. on an emergency motion filed by Willis on Tuesday in reaction to several national media outlets reporting details from leaked videotaped interviews four defendants gave as part of their plea agreements.

Willis argued in the motion that a protective order was necessary to keep witnesses from harm and safeguard sensitive evidence that could be used to intimidate witnesses and harass them, which would result in a tainted jury pool.

Prosecutors are pursuing a felony racketeering case against Donald Trump and 14 of his allies accusing them of illegally conspiring in Georgia and several other states to overturn the GOP incumbent’s narrow loss to Democratic nominee Joe Biden in the 2020 presidential election.

In news articles released on Monday, ABC News and the Washington Post reported that they obtained video from unidentified sources that shows prosecutors interviewing co-defendants and attorneys Jenna Ellis, Sidney Powell, Kenneth Chesebro, and Atlanta bail bondsman Scott Hall about their involvement in the case. As part of their plea agreements, the four were required to provide what are legally known as proffer interviews to prosecutors.

In a court filing, Willis stated that the proposed order balances the privacy and security interests of the state and its witnesses with the evidentiary discovery rights of the defendants. 

“The proposed order also ensures that the defendants’ rights to a fundamentally fair trial will not be threatened by extrajudicial statements of others,” she said. 

ABC News reported Ellis recalling in her interview a conversation at a 2020 White House Christmas party in which Trump White House aide Dan Scavino appeared to be excited to tell her that Trump would not be leaving office “under any circumstances.” Ellis also claimed that Scavino was dismissive of her concerns that Trump couldn’t unilaterally decide to stay in office just because Trump believed mass voting fraud cost the Republican his 2020 re-election bid.

In her video statement, Powell reportedly talked about her frequent communications with Trump about unsuccessful legal challenges to election results in Georgia and other battleground states’ results in court. Powell also said that Trump wanted to appoint her as special counsel and have her draft an executive order to seize voting machines in several states, according to several media reports.

In Tuesday’s motion, Fulton prosecutors included an email chain between the district attorney’s office and defense attorneys that might shed light on how the revealing interviews became public fodder. 

On Monday night, Trump’s lawyer Steve Sadow asked if prosecutors had disclosed the interviews to the media. After special prosecutor Nathan Wade denied any involvement on the part of the district attorney’s office, Todd Harding, who represents co-defendant Harrison William Floyd, sent an email stating that “It was Harrison Floyd’s team.”

Later, Harding denied involvement in the leaks, blaming a typo. 

Willis says if her motion is granted, prosecutors won’t send video recordings of confidential proffers to the defense anymore. Defendants and their attorneys would be permitted to watch the recordings and take notes at the D.A.’s office.

“The state is not asking that the defendants and their counsel be prohibited from viewing or using the discovery to prepare in their defense but asks merely for the defendants and their counsel not to disseminate it for any reason aside from trial preparation,” Willis said.

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.