Protective order issued in connection to Georgia election interference case

Fulton County Judge Scott McAfee has granted a protective order requested by District Attorney Fani Willis' office in the election interference case against former President Donald Trump and his remaining co-defendants.

The order was requested after the lawyer for defendant Misty Hampton leaked videos of Sidney Powell and Jenna Ellis being interviewed by Fulton County prosecutors.

On Thursday morning, Fulton County Superior Court Judge Scott McAfee granted a protection order that he wrote was the one proposed by defendant Shafer, "with some modifications."

The lawyer defended his actions on Wednesday, saying he felt the public had the right to know.

During a hearing on Wednesday, the state and nearly all the remaining defendants agreed to a proposal under which the DA's office will designate which discovery material is sensitive and should be withheld from the public before the trial. The defendants will have the opportunity to challenge any such designation before a ruling is made.

Not everyone was in agreement with the issuance of a protective order. 

Tom Clyde, who is counsel for multiple media agencies, argued that the order would give the state too much power, including deciding what’s newsworthy.

"This structure would have to have standards in place that would limit decisions, otherwise both parties could, just as a matter of convenience, agree to keep all this confidential," said Clyde.

Attorney Catherine Bernard, attorney for Jeffrey Clark, also objected to the order.

"We do not believe that this protective order is necessary given the fact that the information relevant to this case and discovery is almost all information that is of public import, public availability and public record," said Bernard.

Ellis and Powell were indicted along with Trump and 16 others on charges they worked to overturn the state's election results in 2020. They, along with Kenneth Chesebro and Scott Hall, took plea deals.

Former Prosecutor Ash Joshi says the judge took a reasonable approach. "There’s concern in a case like this that if the judge doesn’t issue a protective order, either the one that the state proposed or either the one that was ultimately issued, that this would continue to happen," he explained.

Joshi stated that the order still had notable differences compared to the one Fulton County District Attorney Fani Willis’s requested.

"I think it’s important to understand that what the state was requesting was kind of a blanket protective order," said Joshi. "Nothing provided in discovery, can be provided in any context."

The judge’s order can still help block the release of "sensitive materials" during the discovery phase, but the state has to label those items and the defense then has 14 days to object.

"So what the judge effectively did was, he found a kind of a middle ground which says, we’re not going to prevent everything from being disseminated" said Joshi. "But anything that the state believes is that important, is that sensitive, those are the items that we’re going to protect," he continued.

Another highlight from the protective order issued is that it outlines who the sensitive materials can be disclosed to. Sensitive materials cannot be disclosed to anyone other than "employees, assistants, paralegals. consultants, agents, experts or potential witnesses connected to the defendant's defense." If sensitive materials are inadvertently disclosed, the one who did it has to disclose that it happened.

Willis is also asking a judge to revoke the bond for defendant Harrison Floyd.

She argues he has violated the terms of his release by intimidating witnesses and codefendants with social media posts. "Revoking a bond is not typical, but defendant Floyd, from what I’ve read in the state’s motion, has certainly made it very possible in this case."

The hearing for Floyd will be held next Tuesday, Nov. 21.