On Wednesday we learned that prosecutor's interviews of attorney Jenna Ellis and three others indicted alongside Donald Trump for attempting to overturn Georgia's election results were leaked by Jonathan Miller, the lawyer for another codefendant, one who has not struck a plea deal like Ellis and Trump gadfly-sort-of-lawyer Sidney Powell have.
The main news to come from the tapes was Ellis' retelling of a December 2021 conversation with White House deputy chief of staff Dan Scavino in which Scavino told her Trump was "not going to leave" the White House in January—whether the law was on his side or not. It's not clear why Miller thought leaking the tapes would help his own client, former Coffee County Elections Director Misty Hampton. District Attorney Fani Willis was furious at the leak, which came about due to the pre-trial discovery process that requires prosecutors to share their evidence with defendants.
It now looks like it's a near-certainty that the leak will result in a tamping down of the evidence the public will be allowed to see before the trial starts. Fulton County Superior Court Judge Scott McAfee is signaling that he will be drafting up a protective order in which evidence prosecutors label "sensitive" is temporarily barred from public release. This was a compromise reached between prosecutors and the defense after the defense and news outlets both argued that all evidence should be publicly released due to the enormous public interest in Trump's prosecution.
The Atlanta Journal-Constitution reported that McAfee specifically cited the leaked tapes in agreeing that a new protective order was necessary. "It seems like having open files for everyone to start litigating the case before we actually get inside of a courtroom comes with a lot of side effects that I don’t know if we've thought through," noted McAfee.
It's not a straightforward question. It's an absolute certainty that it is in the public interest for the evidence against Trump and co-defendants to be released as soon as possible, rather than being subject to the same self-serving slow-walk that Trump is trying to achieve in each of his four federal and state trials. Whether court systems like it or not, alleged criminal conspirator Donald Trump is attempting to be reelected to the presidency in November of next year. It is vital for the general public to know whether Trump is on his way to numerous criminal convictions before the voting starts.
No snippet of evidence may make a difference to true Trump believers, but a broader swath of the public may be moved into changing their votes—either to ditch Trump if a conviction looks likely, or to support him if the evidence looks weak.
The complication is that at this point, Trump and his allies have a long, long history of publicly attacking witnesses, prosecutors, judges, and anyone else involved in the cases against him. It's a certainty that releasing pre-trial testimony from Ellis, Powell, or others will kick off new attempts to intimidate them—or, to Trump's own likely delight, death threats against them.
Trump will instigate such threats no matter when the evidence comes out, but asking witnesses to endure months of it before they are ever called to a witness stand presents the plain risk that those witnesses will be intimidated into recanting testimony. As McAfee notes, "litigating" the case in public, in the news and on social media, will assuredly have "side effects" that could change the outcome of the trial itself.
Let's presume the evidence against Trump is as solid as it looks—and at the moment, it seems Trump and his allies are so clearly on the wrong side of the law that only jury nullification could save them. If we can't have both, is it more important that Trump be convicted, or that the evidence against him be made public in time for voters to account for it?
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Republicans are challenging labor leaders to fights and allegedly physically assaulting one another. Donald Trump says he will abolish reproductive rights entirely and is openly calling for the extermination of his detractors, referring to them as “vermin” on Veterans Day. The Republican Party has emerged from its corruption cocoon as a full-blown fascist movement.