Fani Willis and Donald Trump, United on Georgia Secrecy, Hand the Press a Loss

In a case of strange bedfellows, the former president and the district attorney working to convict him join forces against the Fourth Estate.

AP/Charlie Neibergall
President Trump during a rally, October 29, 2023, at Sioux City, Iowa. AP/Charlie Neibergall

The entry of a protective order sealing all “sensitive” materials in District Attorney Fani Willis’s sprawling racketeering case against President Trump in Georgia surfaces strange bedfellows among the defendants accused of conspiracy, the district attorney prosecuting them, and the press covering the case.  

The order, a request from prosecutors agreed to by Mr. Trump and opposed by the press, comes on the heels of a leak of footage from “proffer videos” with a handful of defendants who have pleaded guilty and entered into cooperation agreements with the government. Those tapes, as reported by ABC News, featured conversations with attorneys allied to Mr. Trump.

The press, in the person of an “intervening counsel,” mounted an unsuccessful effort to prevent the order from being handed down. The scribes maintain that such an order would run afoul of the First Amendment. Judge Scott McAfee, though, writes that his decision “does not offend” the Constitution because “historically, discovery materials were not available to the public or press.”    

The possibility of the protective order fractured the defendants. Mr. Trump, along with Mayor Giuliani, attorney John Eastman, a former chief of staff in the Trump White House, Mark Meadows, and six others came down in favor of such an order, possibly concerned that leaked materials could cast them in a poor light. Other defendants cast themselves against such an order.

It is likely no coincidence that the case’s highest-profile defendants have swung behind a measure proposed by Ms. Willis. Messrs. Trump, Giuliani, Eastman, and Meadows could have the most to lose from material supplied to the government by cooperating witnesses. This more notorious cohort could sense that leaks — like those already in the public ken — could turn juries against them.       

Georgia law provides for a protective order if disclosing discovery “would create a substantial threat of physical or economic harm to a witness.” If such a threat is discerned, a court “may at any time order that the discovery or inspection be denied, restricted, or deferred.” 

In finding that the standard is met, Judge McAfee reasoned that in the absence of such an order, a party — there are 15 of them after four defendants pleaded guilty — could “be tempted to delay disclosure or avoid reducing items to documentary form if the possibility of public vetting is ever present.” 

Nodding to the complexity of the case that Ms. Willis has chosen to bring, Judge McAfee writes that “only with full and unimpeded discovery will a case as cumbersome as this ever stay on track and be ready for trial without inordinate delay.” The district attorney has pushed for all of the case’s defendants to be tried together and predicted that the trial could stretch into 2025.

Judge McAfee issues the order with one eye on the Constitution’s promise of an “impartial jury of the State and district wherein the crime shall have been committed.” He notes the defendants’ due process “could become unattainable should the public be allowed to vet every piece of unfiltered evidence months before trial.”  

The judge appears alert to not only the due process rights of the parties but also to the power of the press. He notes that the “likelihood of harm in this case is severe, as extensive media coverage guarantees broad dissemination of any disclosed discovery materials.” 

Judge McAfee’s position that “discovery is neither a public process nor typically a matter of public record” could be susceptible to appeal. He notes, possibly with a touch of foreshadowed irony, that the standard for a protective order for discovery materials in Georgia is “found in a rarely, if ever, appealed section” of the state’s code.

The New York Sun

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