Fani Willis, Rattled by Devastating Video Leaks, Casts About for a Judicial Lifeboat To Save Her Case Against Trump

The district attorney fears the footage of cooperating witnesses meeting with investigators and asks that it be sealed.

AP/John Bazemore
The Fulton County district attorney, Fani Willis, on August 14, 2023 at Atlanta. AP/John Bazemore

The leak of “proffer videos” between investigators in Georgia and a handful of defendants who struck plea deals with District Attorney Fani Willis’s office is threatening to upend her racketeering case. 

The extent to which the district attorney is unnerved by the disclosure of these conversations — they were first shared by ABC News — is evident in her filing of an emergency motion on Tuesday evening. That request asks for a protective order “over all discovery materials,” including the videos. This is the second time she has made such a request. 

While the district attorney awaits a ruling on the motion, she is taking unilateral steps to preclude further leaking. Going forward, she “will not produce copies of confidential video recordings of proffers to any defendant to prevent further public disclosure.” Instead, defendants must come to her office to view them. Notes, but no reproductions, will be allowed. 

The videos whose release have so rattled Ms. Willis capture conversations between Georgia investigators and attorneys Jenna Ellis, Sidney Powell, and Kenneth Chesebro. All of them agreed to cooperate with Ms. Willis in exchange for testifying “truthfully” during the remainder of the case. As part of those agreements, none will serve time in prison. 

Ms. Willis’s motion notes that the “confidential video recordings were not released by the State to any party other than the Defendants charged in the indictment,” effectively an accusation that one of the defendants, rather than her office, is responsible for them seeing the light of day. 

The district attorney reasons that the leaked footage is “clearly intended to intimidate witnesses in this case, subjecting them to harassment and threats prior to trial.” She adds that the videos  “constitute indirect communication about the facts of this case with co defendants and witnesses and obstruct the administration of justice.”

Ms. Willis also has a notion of who is behind the leak, pointing to an email from the lawyers for one of the defendants, Harrison Floyd, that admitted “it was Harrison Floyd’s team.” Mr. Floyd’s counsel subsequently called that message a “typo” and maintained that they “did not communicate with the media.” 

Mr. Floyd is charged with three felonies and has not reached an agreement with prosecutors. The rules of discovery, though, sourced to the Constitution’s 14th Amendment, mandate that the government hand over any materials that could potentially be exculpatory. Ms. Willis’s decision to charge 19 defendants means that these materials necessarily could gain a wide distribution.

Ms. Willis’s urgency with regard to the videos could have a number of sources. The sight of President Trump’s erstwhile allies now testifying against him could raise the former president’s ire and lead to the kind of caustic commentary he has already directed against Attorney General Barr, Vice President Pence, and a former chief of staff, Mark Meadows.

Another concern, surfaced in these pages yesterday, is that the clips that have surfaced thus far do not bolster the district attorney’s case. The one featuring Ms. Powell seems to advance Mr. Trump’s position that he truly believed the election was stolen, and thus lacked the requisite mens rea to be convicted of attempting to overturn it. 

A second video, of Ellis, references comments made by an aide to Mr. Trump, Dan Scavino. Mr. Scavino claimed that Mr. Trump, whom he called “the boss,” would not leave the White House even after his defeat. Mr. Scavino, though, has not been charged, making such an observation difficult to stand up in court. Mr. Trump, after all, did leave the White House on January 20, 2021. 

Ms. Willis, speaking at a Washington Post event on Tuesday, ventured that the racketeering trial “will take many months. And I don’t expect that we will conclude until the winter or the very early part of 2025,” after the next presidential election. If Mr. Trump regains the White House, he would not be able to pardon himself for a conviction under Georgia state law.

The New York Sun

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