Trump Co-Defendant’s Attorney Admits to Leaking Video Evidence at Emergency Georgia Hearing

ATLANTA — An attorney for one of Donald Trump's co-defendants in the Georgia election-racketeering case said at an emergency hearing Wednesday that he provided confidential video evidence to the media.

"In being transparent with the court, and to make sure that nobody else gets blamed for what happened, and so I can go to sleep well tonight, judge, I did release those videos to one outlet. And in all candor to the court, I need the court to know that," said Jonathan Miller, an attorney for former Coffee County election supervisor Misty Hampton.

Fulton County Superior Court Judge Scott McAfee scheduled Wednesday's hearing following a motion by Fulton County District Attorney Fani Willis' office in the wake of reporting from ABC News and the Washington Post on Monday that included videos from the four people who recorded interviews as part of their guilty plea deals.

Fulton County Superior Judge Scott McAfee looks through paperwork during a jury questionnaire hearing in his courtroom at the Fulton County Courthouse on October 16, 2023 in Atlanta, Georgia. Alyssa Pointer/Getty Images

In his comments, Miller did not specify which media outlet he'd shared the videos with.

Most of the 45-minute hearing — conducted live in Georgia and via Zoom for all of the attorneys — was devoted to a discussion of proposals for a protective order governing evidence exchanged between the parties in the case going forward.

Willis’ prosecutors wanted a blanket order on all the evidence. Co-defendant David Shafer’s legal team proposed an alternative in which the state would specifically designate certain evidence as sensitive. Prosecutors agreed with Shafer’s counter-proposal, as did most of the defense attorneys for the other indicted co-conspirators, including Trump attorney Steve Sadow.

McAfee throughout the hearing signaled that he was inclined to enact an order along the lines of that proposed by Shafer. He also pledged to issue his opinion in writing soon.

“The state originally had proposed what I would characterize as a blanket umbrella protective order was just essentially anything and everything that's turned over,” McAfee said, adding “Whereas my reading of Mr. Shafer’s proposed order is there is going to be this intermediary designation of something is going to be sensitive.”

Trump was among 19 original co-defendants indicted in Willis’ sweeping election-racketeering case brought in August. Since then, four defendants have pleaded guilty as part of agreements with prosecutors: Georgia bail bondsman Scott Hall, and lawyers Kenneth Chesebro, Sidney Powell and Jenna Ellis.

Prosecutors for the DA’s office clarified that they are prepared to go through all the evidence and make those designations, noting that things like proffer videos, personal identifying information and sensitive business records would be designated as sensitive. The state, in agreeing to Shafer’s proposal, withdrew their motion that said proffered or other sensitive video evidence would be viewable by defense counsel only in a secure office.

Attorneys for all but two of the defendants, John Eastman and Michael Roman, were present at the hearing, and all agreed to Shafer’s proposed order. A few noted their objection to any order overall, but said they would not argue against the majority will of the other defense attorneys and the court.

“Our position on the record is that we do not believe a protective order is necessary, given the fact that the information that is relevant to this case and the discovery is almost all information that is a public import public availability and public record,” said Catherine Bernard, an attorney for former Justice Department official Jeffrey Clark, who is one of Trump's co-defendants.

Chris Kachouroff, an attorney for Harrison Floyd also said a protective order is not necessary.

“It's not like there's a snitch being revealed in any of these proffers which is the typical scenario that one would expect to cease protective orders entered,” he said. Kachouroff also expressed frustration at the states’ motion which included emails from his co-counsel Todd Harding in which Harding mistyped an email making it appear that they had been the source of the leak.

“I don't know if the state's in a position where they can actually say definitively who did or did not [leak the videos],” McAfee said, noting the state’s motion did acknowledge the email mishap, he added “I don't know why the need for the email attachments, but here we are, and I think when we signed up for the case [we] agreed for some level of aggravation, but here we are.”

Tom Clyde, an attorney representing a variety of media organizations including WSBTV, The Atlanta Journal-Constitution, CNN and the Associated Press, argued against the protective order.

“Our position is there shouldn't be one at all, and that’s a full stop right there,” he said.

“In both civil cases and criminal cases, materials can't be filed under seal until the court has a hearing and considers document by document the issues that are being asked to be filed under seal and weighs the evidence about where their privacy outweighs public interest," Clyde added.

Will Wooten, a prosecutor in Willis' office, argued that the media as a non-party to the case does not have standing to argue for or against the order and that the order does not restrict any particular disclosure “it simply creates a mechanism through which the state can designate discovery material as something that should be protected sensitive material.”

Craig Gillen, the attorney for Shafer, agreed. "The mechanism suggested here is for an efficient and professional handling of pretrial discovery, this isn't a trial,” he said. Gillen noted that if the state tries to designate something as sensitive that defense counsel disagrees with, that can still be argued in court.

“If they label something sensitive, we have a period of time to say no,” he said.

Following those arguments, Kachouroff, noted that his client, Floyd, was withdrawing his support of Shafer’s proposed order and endorsed the position of Clyde on behalf of the media instead.

At the end of the hearing McAfee signaled that he was inclined to enact the order proposed by Mr. Shafer, but said he was sensitive to the First Amendment concerns raised by Clyde.

“We'll be putting together an order on this and Mr. Clyde’s point on behalf of the media intervenors is well taken,” he said “I believe that First Amendment concerns of this case are not ones to just be ignored or flippantly denied and those are certainly ones I've been sensitive to throughout this process.” he said

“Pretrial discovery, I think places us in a very different realm,” he continued, later adding: “I certainly will be modeling a protective order based on that proposed by Mr. Shafer.”

Following the plea agreements there are now 15 co-defendants remaining in the case, including the former president. A trial date has not yet been scheduled, though Willis on Tuesday said during an event hosted by the Washington Post that she thought the case may not be resolved until the end of next year or early 2025. All remaining defendants have pleaded not guilty.