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Double Dispatch: Friday’s Hearings in South Florida and Fulton County

Anna Bower, Benjamin Wittes
Monday, March 4, 2024, 6:00 PM
Five hundred miles apart, two courts held major hearings in Trump criminal cases.
Former President Donald Trump (Gage Skidmore,; CC BY-SA 2.0 DEED)

Published by The Lawfare Institute
in Cooperation With

In the federal courthouse in Fort Pierce, Florida, U.S. District Judge Aileen Cannon is hearing arguments on exactly when the Mar-a-Lago documents case against former President Trump will proceed.

In the Fulton County Superior Courthouse in Atlanta, by contrast, Judge Scott McAfee is hearing arguments about whether District Attorney Fani Willis’s 2020 election case against Trump will implode entirely.

It is Friday, Mar. 1, and both judges are holding hearings in which Trump’s defense attorneys and prosecutors are sparring over whether either case will go to trial in a timely fashion. 

For Special Counsel Jack Smith and his team, the problem is the judge: Judge Cannon seems allergic to making decisions and seems overly receptive to defense arguments that clearly lack merit. The prosecutors are trying to get a trial date pinned down, and they’re trying to convince Judge Cannon not to force them into damaging disclosures and into providing discovery against half the federal government. 

For Willis, the goal is more existential: It is not to get thrown off the case that has come to define her career. 

The Mar-a-Lago Morning Session

The day begins in South Florida with a morning session in Judge Cannon’s court.

At 10:02 am, Judge Cannon sweeps into the room as a court officer shouts “All rise!”

The parties introduce themselves. On behalf of the special counsel’s office, it’s Jay Bratt and David Harbach, who are seated at the prosecution table. Seated in a chair directly behind them is their boss, Special Counsel Jack Smith, sporting a characteristically stony expression.

On the other side of the room, the prosecutors are greatly outnumbered by the defense lawyers. That’s because all three defendants charged in the case decided to appear in-person for today’s hearing. The former president is clad in his usual uniform for court appearances: navy suit, crisp white shirt, extra-long red tie. He’s flanked on either side by his attorneys: Todd Blanche, the slick white-collar defense lawyer who also represents the former president in the criminal case brought by Manhattan district attorney Alvin Bragg; Emil Bove, a former federal prosecutor who serves as Trump’s expert in classified information-related litigation; and Chris Kise, the former solicitor general of Florida. 

Trump’s co-defendants, Waltine Nauta and Carlos De Oliveira, are likewise joined by their attorneys. For Nauta, it’s his local counsel, Sasha Dadan, and D.C.-based attorney Stanley Woodward, who has emerged as a ubiquitous presence in Trumpworld and Jan. 6-related cases. For De Oliveira, it’s John Irving and Larry Donald Murrell, Jr. 

“Alright, we have a full house,” Judge Cannon remarks when the cadre of defense attorneys are finally done introducing themselves.

Judge Cannon kicks things off by summarizing the three matters she wants the parties to address today. The first relates to trial scheduling. Trump and co. were originally scheduled to be tried for crimes related to obstruction and unlawful retention of national defense information beginning on May 20. But last November, following several delays during the pre-trial litigation, Judge Cannon indicated that she would be inclined to make “reasonable adjustments” to the timing of the trial. As Judge Cannon mulls how long the trial ought to be postponed, she wants the parties to address the competing scheduling proposals they filed with the court the evening before today’s conference.

The second matter on the agenda relates to the defendants’ motion to compel discovery. In that motion, the defense asked Judge Cannon to enter an order defining the scope of the “prosecution team” for the purpose of determining whether the government must hand over additional materials to the defense. Specifically, Trump’s legal team argued that the “prosecution team” is not limited to the prosecutors and law enforcement officers who are working on the case. Instead, the defense claimed that a wide swath of individuals within the intelligence community, the White House, and other federal agencies should be considered members of the “prosecution team.” If accepted by Judge Cannon, this sweeping view of the “prosecution team” would allow Trump’s team to obtain additional communications between prosecutors and those entities as a part of the discovery process. The defense appears to believe that those materials could support its narrative that the intelligence community, the White House, and other federal agencies colluded in a “biased” or “politically motivated” fashion to bring criminal charges against Trump.

While Judge Cannon does not intend to address the substantive legal issues raised in the motion to compel today, she says that the parties should be prepared to discuss their views on Trump’s request for an evidentiary hearing concerning the proper scope of the prosecution team.

The third and final topic Judge Cannon directs the parties to address today concerns the government’s efforts to keep certain materials on the court’s public docket sealed or redacted.

“With that broad agenda in mind, let us begin,” Judge Cannon declares as she finishes her summation of the agenda.

Bratt, on behalf of the special counsel’s office, jumps up to discuss the timing of the trial. In its proposal filed on the eve of the hearing, prosecutors requested a trial beginning on July 8. Trump’s proposed schedule, meanwhile, made an awkward and seemingly contradictory proposal, arguing that the former president should not be tried before the election—but nonetheless setting out a schedule that would culminate in a trial beginning on August 12.

At the lectern, Bratt starts off by alluding to the weirdness of the former president’s proposed schedule. “There’s a lot going on” in the defense proposal, he tells Judge Cannon. Still, Bratt continues, “one thing the parties agree on is that this case can be tried this summer. 

Judge Cannon, however, seems skeptical of the government’s proposed timeline—or at least some aspects of it. When Bratt contends that a hearing on certain pre-trial motions could be completed in one day, Cannon tells him that it would be “unrealistic” to think that more than a dozen substantive pre-trial motions could be argued in a single day. She presses for a more “realistic” allotment of time for the motions hearing, to which Bratt replies that three days would be sufficient.

Then Judge Cannon directs Bratt to address scheduling matters regarding the defendants’ motion to compel discovery related to the scope of the prosecution team. Bratt replies that the government suggested March 20 for such a hearing. But that hearing, he says, should be limited to argument on the legal issues raised in the motion—in the government’s view, an evidentiary hearing on the matter is neither necessary nor warranted.

Judge Cannon interjects: So you don’t see any factual disputes regarding the scope of the prosecution team that would warrant an evidentiary hearing? Why is that?

Bratt, in reply, tells Judge Cannon that his colleague, Harbach, can address the substantive legal issues regarding the motion to compel. But generally, he says, the government’s position is that the issue of how this case came to be is not subject to a “mini-trial” through a discovery motion.

Judge Cannon isn’t satisfied by that response. She wonders aloud why the question of how this case came to be wouldn’t have some implication for the meaning of “prosecution team” as that term has been defined by the Court of Appeals for the Eleventh Circuit. 

It’s clear that Cannon wants to jump ahead to the legal issues raised in the defendants’ motion to compel. Bratt, apologetic, tells Cannon that Harbach is better positioned to answer questions to that effect. There’s a long pause as Harbach tags in for Bratt.

Harbach, now up at the lectern, elaborates on the special counsel’s position regarding Trump’s request for an evidentiary hearing on the scope of the prosecution team. In the government’s view, he says, the defense contrived a dispute about the scope of the “prosecution team” as a means to get an evidentiary hearing that they think could bolster their “baseless” theories about political animus or bias. But for a defendant to compel the production of discovery under Rule 16 of the Federal Rules of Criminal Procedure, Harbach continues, the court must apply a threshold legal question as to whether the requested material is subject to disclosure in the first place. Here, for example, Harbach says that many of the requested items would not be subject to Rule 16 disclosure because they are not “material to preparing the defense.”

Judge Cannon asks Harbach to explain why the defendants haven’t made a “good faith” showing that they are entitled to know more about the “degree of collaboration” between the special counsel’s office and the intelligence community. 

Harbach responds that no single person in the intelligence community had any role in determining how to charge the case. None of the agencies or individuals that the defense claims are part of the “prosecution team” were involved in law enforcement activities, such as collecting evidence or issuing subpoenas, he says.

Then Judge Cannon wonders aloud why the prosecution could not simply file some sealed declarations to effect. Harbach replies that the defendants cannot demand a declaration from a member of the intelligence community just because they don’t have any evidence to back up their baseless theories. Their argument, Harbach explains, is that these federal agencies are “tools of President Biden.” But a request for additional discovery on that theory is not governed by Rule 16, Harbach says. It’s a selective or vindictive prosecution claim, which means that discovery on the topic would require the defendants to satisfy the more rigorous requirements set forth in the Eleventh Circuit’s opinion in United States v. Armstrong. Harbach, exasperated, spells out the upshot of all this for Judge Cannon: The defendants are trying to “wring out” an evidentiary hearing on the “scope of the prosecution team” because they know they cannot satisfy their burden under Armstrong

Judge Cannon, for her part, doesn’t seem convinced. She suggests that Harbach is trying to craft a “burden of proof” for a party to be entitled to an evidentiary hearing. But at least for now, she’s heard enough on the motion to compel the issue. She invites Bratt back up to the lectern to resume their discussion of the government’s proposed trial schedule. 

Noting that it’s “important to do things in a reasoned way,” Cannon asks Bratt what the government views as the court’s “priority items” to address within the next 30 days or so. Keep in mind, she adds, that there are outstanding issues regarding redactions and sealing of documents that have essentially “put a hold” on the ability of the parties to “fully brief” certain motions. 

The latter remark causes Bratt to engage in a back-and-forth with Judge Cannon on whether the government’s requests to seal or redact certain documents has slowed down the litigation process. Eventually, however, Bratt gets around to addressing one of the government’s short-term priorities: “We need to get moving on CIPA § 5,” he urges. He’s referring to a provision of the Classified Information Procedures Act (CIPA) that requires a criminal defendant to provide written notice to the government regarding the classified information he intends to use at trial. The CIPA § 5 notice typically triggers litigation under CIPA § 6 surrounding the use, relevance, and admissibility of classified information at trial, including the potential application of protective measures like the so-called “Silent Witness Rule.” 

Turning to proposed scheduling for CIPA-related litigation, Judge Cannon seems less sure of herself, peppering Bratt with questions about how the CIPA process usually works. At one point, he explains to her that it would not be necessary to hold a hearing on the “sufficiency” of the defendants’ CIPA § 5 notice, as requested by the defense in its proposed schedule. “It’s not a thing,” Bratt says.

At another point, Bratt elaborates on the reason why the government has requested more than three weeks between the defendants’ § 5 notice and the government’s § 6A motion regarding the use, relevance, and admissibility of classified information. Once the government receives notice that the defense intends to use classified materials at trial, Bratt explains, there’s typically a period of consultation and negotiation between prosecutors and relevant “equity holders”—for example, the government agency that originally classified the information. The purpose of those consultations is to determine the agency’s “comfort level” regarding the use of classified information at trial. So there’s more to it than you might think, Bratt explains to Judge Cannon. 

Bratt is done and Judge Cannon invites Todd Blanche up to the lectern on behalf of Trump. We very much believe, Blanche begins, that it would be a “mistake” to schedule this trial before the election. It would be “unfair,” he grouses, for the Republican candidate for president to be sitting in this courtroom rather than out there campaigning. Blanche claims that the defense only proposed an August trial date because “once you get to September the campaign is in full swing.” 

“There is an easy answer here…start this trial after the election,” Blanche implores. 

As for the government’s July trial date proposal, Blanche says “the problem” with that date is that Trump will be on trial in New York starting at the end of March. He points out that the special counsel’s office proposed a hearing date on a Wednesday in April. That means Trump would be on trial in New York on a Tuesday, travel to Florida for a hearing on Wednesday, and then travel back to New York in time for trial on Thursday. That’s “completely unfair,” Blanche complains. (Blanche doesn’t mention that his client, a former president and self-described billionaire, has access to a private jet and frequently travels between his homes New York and Florida.)

Judge Cannon quizzes Blanche on the timing of the New York trial. How long is it expected to go on? Is it possible that the judge might postpone the trial? 

Blanche replies that the trial is expected to take about six weeks, but it could go on longer than that. As for the possibility that the case could be delayed: “We are going to ask for more time every time we are in front of that judge.” But each of those requests have been denied thus far, he acknowledges. For that reason, Blanche thinks March 25 is a “firm” date for the New York trial.

Having made his points, Blanche returns to his seat next to Trump. Stanley Woodward, on behalf of Nauta, pops up to address his client’s proposal for a trial date: Sept. 9, 2024. 

When he arrives behind the lectern, Woodward launches into a monologue on the state of discovery in the case. In our view, he declares, discovery is not over. Woodward says that he recently learned that the government did not produce a search warrant that had been issued for Nauta’s iCloud account. The government produced the materials it obtained pursuant to the warrant, he clarifies, but he never got the warrant itself. 

Judge Cannon observes that it’s not unusual for the government to produce some materials later on as they become available. What’s unusual, Woodward retorts, is the “truncated” schedule the special counsel wants in this case. What’s more, he continues, the special counsel’s office still hasn’t told the defense which classified information it intends to redact or request substitutions for under § 6 of CIPA. 

Judge Cannon looks puzzled. “I’m confused,” she says. Are you saying CIPA § 6 issues should be litigated before CIPA § 5? 

Yes, Woodward replies. Nothing in the statute sets out a timeline. Cannon, still baffled, says that may be true but it would nonetheless make sense to follow the sequential order of the statute. 

Finally, Woodward addresses why he proposed a later trial date for his client: In August, he explains, he has a planned vacation with his family. Judge Cannon replies that she “understands” that there is a “human element” to scheduling. 

Now Judge Cannon invites Emil Bove to address the motion to compel on behalf of Trump. Bove argues, first, that the “numerous” exhibits attached to the defendants’ motion to compel establish the need for an evidentiary hearing on the scope of the prosecution team. The government, he argues, has the burden of showing that they are in compliance with discovery obligations. But they have not met that burden here, and the motion to compel raises several factual disputes about which entities should be considered part of the “prosecution team,” including, for example, the National Archives and Records Administration. 

Judge Cannon wants to know how Bove envisions a potential evidentiary hearing proceeding. At the hearing, Bove says, defense counsel would seek to admit into evidence the exhibits that they appended to their motion to compel. There would be a need for witness testimony, he says, potentially from individuals in the intelligence community. And given that there could be aspects of the hearing that involve classified information, the hearing would likely need to be conducted in a SCIF. 

With that, Bove is done. De Oliveira’s counsel, Irving, has nothing to add. 

On the other side of the room, Bratt pops up for a brief rebuttal on behalf of the special counsel’s office. As he retreads the finer points of the special counsel’s proposed schedule for a July 8 trial, Judge Cannon observes that there’s been some “emphasis” in the filings on the Justice Department’s so-called “60-day rule,” which generally forbid overt investigative steps against candidates on the ballot within 60 days of an election. What’s the special counsel’s position on that? 

In reply, Bratt tells Judge Cannon that the special counsel’s office consulted on the matter with the Public Integrity Section of the Justice Department. That provision of the manual, Bratt says, “does not apply to cases that have already been charged.” 

Judge Cannon interjects: So that provision does not affect already indicted cases? Right, Bratt says. It applies only where the Justice Department has “control” over the case. It does not apply to cases that have already been charged and are now in the hands of the judicial system. 

It’s the first time that the special counsel’s office has explicitly taken this position on the record in court—and it indicates that the “60-day rule” would not prevent the special counsel from moving forward with a trial close to the November 2024 election. 

Turning to Trump’s proposed schedule culminating in an August trial date, Bratt tells Judge Cannon that they are “fake dates” that border on “bad faith.” They tell you that they do not want a trial before the election, Bratt says, but they nonetheless ask for an August date. It’s an effort to get this case on the books for August so that it stands in the way if the mandate returns to Judge Tanya Chutkan in D.C. District Court following a ruling by the Supreme Court on Trump’s immunity appeal. But their ultimate goal, Bratt continues, is not to go to trial in August. They will instead seek another adjournment of this case, he concludes. 

Now Bratt switches places with his colleague, Harbach, who is up to respond to Bove’s arguments regarding the scope of the prosecution team. 

The defense, Harbach begins, says that they shouldn’t just have to take our word for it that we are complying with our discovery obligations. But the defense has not pointed to a single case that supports the notion that they should get an evidentiary hearing on the “scope of the prosecution team.” Then Harbach, who has appeared increasingly frustrated as the hearing stretches on, goes full Cuba Gooding, Jr. in Jerry Maguire: “Show me the case!” he practically shouts. 

Judge Cannon asks, again, why Harbach doesn’t think the defense has raised “factual disputes” regarding the scope of the prosecution team. Harbach says no, they didn’t raise “colorable issues” regarding the scope of the prosecution team, and that’s not the legal standard anyway. As to specific factual issues, Harbach points out that defense merely cited the exhibits in their brief, which show certain communications between prosecutors and members of various federal agencies. That doesn’t raise a factual dispute, Harbach says. 

But they read those materials and draw different inferences than you do, Judge Cannon replies. They think it shows you have an overly “narrow” definition of the prosecution team. 

“Drawing inferences and stitching together arguments does not a factual issue make,” Harbach retorts. Raising “questions” about facts does not constitute a “factual dispute.” 

Judge Cannon interjects: What if you’re working in a negotiation-type capacity with another federal agency?

At this, Harbach reminds Cannon that “having negotiations with” another entity is not the legal standard for defining the “prosecution team.” Federal agencies interact with other federal agencies all the time, he says, but that doesn’t mean that they’re automatically part of the prosecution team. Again, Harbach reiterates, the defense needs to “show the court the case.” 

And with that, the morning session in Judge Cannon’s courtroom is done. Judge Cannon tells the parties that court will resume after lunch. 

The Fulton County Argument

In Atlanta, things don’t get started until 1:00 pm. Judge McAfee has scheduled three hours for oral arguments on the motion to disqualify District Attorney Fani Willis, who has been accused of hiring a romantic partner, Nathan Wade, to lead the prosecution against Trump and more than a dozen others. In doing so, the defendants allege, Willis received direct or indirect financial benefits from Wade in the form of luxurious vacations, dinners, and other excursions. All of which, they argue, gave rise to a disqualifying conflict of interest because it created an incentive for Willis and Wade to prosecute the case as long as possible.

Today’s closing arguments on the disqualification matter are to be divided evenly between the defense lawyers and the prosecution. There’s a bit of role reversal going on here, since the defense lawyers are acting in a quasi-prosecutorial role vis-a-vis Willis and the prosecution is defending her. Judge McAfee has given the defense lawyers carte blanche to divide up their 90 minutes between them any way they want. 

There are some preliminary matters to take care of first, however. Both sides have asked to reopen the record. The state has new witnesses. The defense has cell phone records it wants to use to show that Nathan Wade’s phone was calling and texting Willis’s phone a whole lot during a period in which they were supposedly not involved—and even visited her neighborhood a lot, including late at night. 

Judge McAfee takes the view that today’s argument is only going to deal with already-admitted evidence, but that both sides can proffer additional material on a tentative basis. The defense takes the opportunity to declare that it too has new witnesses, but Judge McAfee says there hasn’t been fair notice of anyone who wasn’t acknowledged previously. So today’s arguments, in other words, can cover the record evidence, proffers of other evidence, but not material sprung on the court and the other side at the very last minute.

With that, John Merchant—husband and law partner of Ashley Merchant, the attorney for defendant Michael Roman whose motion started L’Affaire Willis—begins the defense argument, saying he is going to focus on the standard of evidence and the evidence of a conflict of interest.   

The question of whether a prosecutor can be disqualified in a situation like this, he begins, is a matter of first impression. The Sixth Amendment gives the defendants a right to a fair trial, and their prosecutor here is anything but disinterested. Yes, the case law talks about disqualification based on an actual conflict of interest, he acknowledges, but the judge has to pay attention to the appearance of impropriety too. If the court allows this kind of behavior, he contends, confidence in the entire system will be shot.

The case law permits disqualification based on either a conflict of interest or forensic misconduct, and there’s no clear demarcation between the two, he contends. The facts in this case fit into both buckets. And, he warns Judge McAfee, if the judge denies the defense’s motion and the appeals court disagrees, it will require a new trial even without a showing of prejudice.

A number of cases, he argues, make clear that the appearance of impropriety matters here too, not just actual conflicts of interest. He ticks through several cases, as well as American Bar Association standards. Setting up a financial relationship between the state and her “boyfriend,” he argues, certainly qualifies. What is an untoward appearance? Citing Potter Stewart on pornography, he says: you know it when you see it. 

Merchant now turns to the facts. The relationship, he asserts, began in 2019—not in 2022, as the district attorney and Wade both contend. The two were dating for two years when she awarded him a contract. They used the money from that contract to go on trips. Even if you accept their math, he argues, Wade still gave Willis more than $9,000. And in any event, Wade said nothing about cash repayments to her in his affidavit. The first time anyone mentioned cash repayments was on the witness stand—and that’s because Willis and Wade came up with the cash reimbursement story for purposes of this litigation. 

Judge McAfee here asks whether there’s any materiality requirement, whether any amount of money is so small as to be beneath the court’s notice for conflicts purposes. But Merchant says no. There’s no law about how much is the minimum required to create a conflict. The relevant standard is that she received money, and the relevant question is whether she’s disinterested. 

Merchant says he is going to resist temptation to defend his wife, whom Willis and her team had accused of lying about the good-faith basis for her motion. But he then proceeds not to resist the temptation. The text messages between Merchant and Terrence Bradley, he says, are now part of the record, and they prove everything that Merchant said in the motion. It was thus improper for the state to impugn her conduct. Bradley, Wade’s former lawyer and law partner, had chances to correct the record before she filed the motion and didn’t do so. 

Judge McAfee asks why the timing of the beginning of the relationship is important. Merchant responds that the timing is important because it was part of the scheme Willis created to enrich herself and it thus undermines the indictment. She created the system; she hired her boyfriend to kick back money to herself. The totality of the facts, he concludes, are that they did this; they hid it; they tried to cover it up. The motion is accurate. There is no paper trail on the cash repayments they claim to have happened. There’s no way to track that claim. They cooked up the cash theory explanation as a cover story. 

Merchant is done and turns the floor over to Steve Sadow, Trump’s lawyer, who declares that he will address a “subset” of the forensic misconduct question related to Willis’s speech at a church after the motion was filed. 

Sadow begins by noting that shortly after the defense filed the disqualification motion, Fani Willis gave her church speech, which—he notes—was premeditated. She read from written notes, he argues. She planned the speech with calculated determination to prejudice the jury pool by claiming this was happening because Wade is Black. This violated the rules of professional conduct. It wasn’t an argument in a pleading; her facts were false. This is, he argues, as bad as it gets in Fulton County. 

The district attorney’s office then followed up with an affidavit claiming the relationship did not begin until 2022. This is a second misconduct issue, raising “a true concern about their truthfulness.” Sadow argues that Judge McAfee does not need to determine that Wade and Willis lied. He merely has to have a legitimate concern about their honesty to raise an appearance question and justify disqualification. 

The evidence that they were untruthful, he argues, begins with the testimony of Robin Yeartie, the former friend of Willis who testified that the relationship began in 2019. It continues through the text messages between Merchant and Bradley. 

Judge McAfee here asks why he should believe Bradley’s statements in the text messages, rather than his statements in court. If the guy is untrustworthy—as everyone seems to agree—why are his text messages reliable? We don’t, after all, know how he knows the things he said in those messages. 

Sadow responds that the judge can draw a negative inference from the prior inconsistent statements of a witness. The judge, he says pointedly, has to have concerns about the truthfulness of the testimony of Wade and Willis. 

Here Judge McAfee shifts gears a bit. But what’s the remedy for that concern, he asks? Normally, if we are concerned about the ethical conduct of a lawyer, we send that down the street to the bar. Why is the remedy here disqualification? And what is the limiting principle? If I disqualify the district attorney in this case, what about all the other pending cases the district attorney’s office has? Do I have to throw her off those too?

Sadow dodges the question. Prosecutors are supposed to be held to a higher standard, he argues. When you have a lead prosecutor and a district attorney giving untruthful testimony, you have to do something about it. 

This brings Sadow to the cell phone records, which show—he argues–that Wade was in the vicinity of Willis’s apartment 35 times in 2021 and that he appears to have spent the night in the vicinity of the apartment twice. This, he argues, corroborates the testimony of Yeartie and the text messages of Bradley. 

Judge McAfee doesn’t seem wholly convinced. He notes that Wade and Willis never denied that he had been to the apartment. In fact, he said he had been there more than ten times that year; you say it’s 35, he says to Sadow. That’s not even inconsistent. Sadow acknowledges the point but says the overnight incidents raise more concerns, and Judge McAfee acknowledges that they are “suggestive.” In any event, Sadow argues, “forensic misconduct” includes ethical violations and the evidence raises questions about Wade and Willis’s truthfulness under oath. 

Sadow is done and turns the floor over to Craig Gillen, who represents former Georgia Republican chair David Shafer.

Gillen focuses both on the church speech and on Willis’s interactions with the authors of the book, “Find Me The Votes,” Michael Isikoff and Daniel Klaidman. The problem is not a brief, off-the-cuff statement to the writers, he argues. The problem, rather, is that Willis engaged in a systemic pattern of behavior designed to prejudice the defendants. 

Judge McAfee seems skeptical. What did she say that prejudged the guilt or innocence of the defendants, he asks?

Gillen says the comments don’t have to prejudge the guilt or innocence of the defendants. Willis’s conduct was more pernicious than that. She engaged in pretrial comments to set the community against the defendants and to deflect from her own conduct. She chose to give that speech at the church, where she played the race card and she played the God card. She chose to inject race into the minds of her listeners. She chose to declare that God was on her side. And she chose to give interviews to these authors, he argues. It was reprehensible. 

The judge wants to know, however, what specific statements on Willis’s part crossed the line. Gillen has a little problem here, because no specific statement Willis made is really that bad. She played the race card, he argues, by  complaining about all the people who called her using racial epithets. She hid the relationship. Wade filed false interrogatories in his divorce proceedings. She failed to report any of the gifts from Wade. And Wade filed a false affidavit. Gillen here rehashes the defense’s reading of the facts at some length. These people, he says, are guilty of systemic misconduct and they need to go. 

He turns the floor over to Harry MacDougald, who represents Jeffrey Clark and rounds out the defense team’s 90 minutes with an argument on actual conflicts of interest.

He begins by saying he is going to assume that the relevant standard is the most difficult one for the defense—that they have to establish an actual conflict of interest. The evidence, he claims, suggests six of them. 

The first is financial. Judge McAfee, he notes, asked for a limiting principle with respect to financial conflicts. The relevant principle isn’t numerical. It’s whether the money affects a prosecutor’s judgment. And here there are at least two contracts given to Wade’s law firm after Wade and Willis acknowledge that the relationship began. 

The second conflict involves Willis’s grandiose personal ambition. She gave these interviews to Isikoff and Klaidman and is clearly building a career off of this case. 

The third conflict lies in the gifts and the concealment of the relationship.

The fourth involves the speech at the church, which Willis gave to deflect from her conduct and to serve her personal interests.

The fifth involves the district attorney’s intervention in the Wade divorce proceedings, which Gillen describes as an abuse of her office to threaten her boyfriend’s wife. 

The final alleged conflict involves the conduct of her defense of these proceedings, the assertions of attorney-client privilege by the state on behalf of Wade. This, he argues, shows the conflation of the personal interests of Wade and Willis and the public interest. Ten attorneys for the state put their signatures on that document, he argues, suggesting the degree of deployment of state resources to protect personal interests. Only one of these six conflicts, he alleges, is the subject of an evidentiary dispute. 

Wade and Willis, he concludes, should be disqualified, and the case should be dismissed.

The defense is finished, and Adam Abbate takes the podium for the state. Unlike the defense, which divvies things up, Abbate does the entire argument himself.  

He starts, somewhat oddly, by defending the state’s claims that the defense had made material misrepresentations about the evidence it was prepared to put on. He reminds Judge McAfee that the defense had promised evidence that Willis and Wade were cohabitating, that Bradley would impeach a number of witnesses. Yet there was no evidence of cohabitation, he argues, and Bradley did not impeach anyone—and the parade of witnesses the defense was going to call never showed up. 

Robin Yeartie’s testimony, he notes, was contradicted by her own lawyer, whose statements that she knew nothing about the relationship and had no information about cohabitation should be taken as a statement contrary to her testimony by the client herself. Yeartie’s statements were thus at best inconsistent, Abbate suggests.

Abbate now turns to the appropriate standard, which he says is an actual conflict of interests. Courts should be reluctant to disqualify, he argues. And Willis should only be disqualified if she received some tangible financial benefit based on the outcome of the case. On this point, he contends, the defense got nowhere. They are in the same position they were in after the evidentiary hearing as they were before it. There is no evidence that the relationship did not begin in 2022, when both Willis and Wade claimed it did. And there is no evidence that anyone’s due process rights were impaired by the relationship. The motions should thus be denied, and Willis and Wade should both be allowed to remain on the case.

Abbate then runs through a string of cases that he argues show that the standard is an actual conflict and has a high burden of proof—not a mere preponderance of the evidence. He argues that the cases the defendants cite are not on point or are being mischaracterized by the defense. And while some cases appear to suggest that an appearance of impropriety can form a basis for disqualification, they always actually have an actual conflict of interest in them too. In response to questioning from Judge McAfee, he argues that in certain cases, the supposed appearance of impropriety actually arises out of an actual conflict of interest. 

Such conflicts include divided loyalties, as when a prosecutor formerly represented a defendant in the same case or related cases or represented some other party. They might also include financial conflicts like a prosecutor being paid on the basis of a contingency fee or a bonus for convictions. The key is that they have to somehow deprive a defendant of the right to a fair trial. There is nothing like that here, Abbate argues. There is no evidence that Willis received any benefit at all.

Judge McAfee here asks whether the benefit has to arise out of the final disposition of the case or whether an assistant district attorney who received a bonus for every time he successfully defeated a Fourth Amendment suppression motion would be similarly conflicted. Abbate agrees that such a prosecutor would have an actual conflict and should be disqualified. He and the judge agree that the real issue is thus not limited to conflicts affecting the final disposition of the case but is, more broadly, implicated when a financial conflict stands to affect the conduct of the prosecution.

The key point, Abbate contends, is that disqualification is the last effort to cure conflicts that may arise, and that every effort short of disqualification should be made to address matters unless an actual conflict arises that cannot be addressed otherwise.

Judge McAfee here queries Abbate about the references to Caesar’s wife in some of the cases, and asks whether this does not imply an appearance standard. Abbate here reiterates that the cases with such language also contain actual conflicts. He also cites a case that insists that speculative or theoretical conflicts aren’t enough, but Judge McAfee points out that this language arose in context of a post-conviction appeal. Shouldn’t we be stricter in a pre-trial setting where we’re not risking upsetting an entire trial? Abbate insists that the standard is the same whether pre-trial or post-conviction.

He cites another case that holds that a conflict cannot be based on conjecture and speculation. Here Judge McAfee stops him. Aren’t we past the point of conjecture and speculation, the judge asks? It’s not conjecture or speculation, after all, that there was a relationship and that money changed hands, he points out. 

But it is speculative and conjectural, Abbate responds, whether the money that changed hands accrued to Willis’s benefit or not. 

Abatte now shifts to talking about the evidence before the court. 

He starts with Bradley, whom he describes as a disgruntled former colleague of Wade. Bradly’s text messages show he is vengeful, and in any event, he admits that he was speculating. The state and the defense agree about few things, he points, but both agree that Bradley was less than honest. But in any event, he could not pinpoint the timeframe of the relationship’s beginning. While the defense contended he would be a star witness, his representations on timing and cohabitation all amounted to gossip. And his text messages don’t do the work either. 

Yeartie’s testimony, meanwhile, is inconsistent and contradicted by her lawyer—a point about which Judge McAfee seems unpersuaded. 

By contrast, the state put on not merely the testimony of Wade and Willis themselves but also that of Willis’s father, John Floyd, who lived with Willis at her home in South Fulton. He never saw Wade at Willis’s house but met him only in 2023 at the district attorney’s office. He testified that he kept cash in his home and that Willis did the same. He gave her her first cash-box. There is no evidence, Abbate argues, that contradicts her testimony on her use of cash. Rather, her testimony is substantiated by the testimony of her father. 

Abbate now moves on to the testimony of former Georgia Gov. Roy Barnes. Barnes, not Wade, was Willis’s first choice to lead the investigation. But he turned the job down because it didn’t pay enough and he didn’t want bodyguards for the rest of his life. But Barnes confirmed Wade’s qualifications for the job, Abbate says. 

Willis was not dating Barnes, Abbate notes, nor was she some kind of prophet and just knew that he would turn down the appointment so she could appoint Wade. So the fact that she offered the job to Barnes first shows that she is not conflicted with respect to Wade.

Abbate goes on to note that Yeartie is the only person who really contradicted Wade and Willis on the relationship timeline, and she offered nothing on cohabitation or the trips. The materials from the Wade divorce proceeding show nothing about when the relationship started. And the text messages between Merchant and Bradley show them going through a fishing expedition, promising a string of witnesses—none of whom ever testified. 

This brings Abbate to the cell phone records, which are awkward for the state. He notes that the state uses cell phone records routinely, but that it does so with an expert witness. These records, by contrast, were analyzed by a non-expert, and the analysis was not properly peer-reviewed. 

Yet the records nonetheless contain problems for the defense theory, he argues. The records run from January through November of 2021, and Willis didn’t move out of the South Fulton home until April of that year. Yet the phone records don’t show Wade anywhere near her house in the months before she moved. That’s actually consistent with John Floyd’s testimony that he was never there, but it’s not consistent with Wade’s visiting Willis regularly because they were dating in 2021. At the same time, it does show Wade in the area of the apartment that she had not yet moved to 23 times in that period. That proves that it was not astonishing that he was there 35 times in the months after she moved. 

Abbate argues that the specific hours of his visits are not reliably reflected in the records. It’s not uncommon at all for data records from AT&T to be unreliable to the timing of location data records. It is also common for AT&T records to appear multiple times. That clearly happened here, making communication appear more common than it really was. 

In any event, the records don’t prove they were in a relationship. They prove only that they were in communication—which was never in dispute. 

Abbate now addresses the suggestion that Willis received a financial benefit from her work on this case. She didn’t, he argues. She paid huge costs as a result of taking it on. She couldn’t use her house. She had to pay for safe houses. She had racial and gendered epithets thrown at her. She faced lies and leaks to the media about her daughter allegedly flunking out of college. 

And if she had a conflict of interest incentivizing her to indict more people and drag things out, why did she not indict all 39 of the people recommended for charges by the special purpose grand jury? Why did she whittle the list down to 19? Why has she pushed for a fast trial? For that matter, Willis has a number of large-scale RICO cases like this one. Why not put Wade on all of them? 

On the allegations of forensic misconduct, the defense has to show that the extrajudicial statements have something to do with the prosecution of the case and the guilt or innocence of the accused, Abbate argues. Willis’s church speech involved comments directed at politicians. At no point did she mention anyone’s guilt or innocence.

The defense’s burden is very high, and they haven’t met it, Abbate concludes. The motion should be denied.

Sadow rises to give a five minute rebuttal, which breaks no new ground. 

Judge McAfee thanks both sides, and declares that there are several legal issues to sort through and several factual issues on which to rule. He says he will try to address them in the next couple of weeks. 

And then he’s done.

The Mar-a-Lago Afternoon Session

Around the time that Judge McAfee gets things started in Fulton County, Georgia, the former president turned criminal defendant returns from his lunch break in Ft. Pierce, Florida. 

During his recent appearances in court in the District of Columbia, Trump’s demeanor has oscillated between dour and defiant. Today, however, he appears to be in a lively–even jovial–mood as we await the return of Judge Cannon. In hushed tones, he whispers animatedly with his defense counsel, Blanche. At one point, one of us overhears a snippet of the conversation: “Even if you did commit a crime…” Blanche says to Trump, his voice trailing off into an inaudible whisper. 

Then Judge Cannon arrives, and she’s ready to hear arguments on the special counsel’s motion for reconsideration.

Last month, at the behest of Trump, Judge Cannon ordered the unsealing of various materials appended to the defendants’ motion to compel discovery. The unsealing–which has not yet been carried out–would have revealed, among other things, excerpts from grand jury testimony and the identities of potential witnesses for the government. 

Some of the materials appended to Trump’s motion to compel and later ordered unsealed by Judge Cannon were discovery materials that had been provided to the defendants under a protective order issued by Mag. Judge Bruce Reinhart. The order provided that “Defendants shall not disclose Discovery Material in any public filing or in open court without notice to, and agreement from, the United States, or prior approval from the Court.”

In her order to unseal the materials appended to Trump’s filing, Judge Cannon found that, by attaching these discovery materials to their motion to compel, the defendants had essentially converted them into judicial records to which the public enjoys a “presumptive” right of access. Applying a heightened First Amendment standard of scrutiny, Judge Cannon found that the special counsel’s office had not met its burden of demonstrating that the sealing or redaction was “necessitated by a compelling governmental interest and is narrowly tailored to serve that interest.” 

The special counsel’s office filed a motion for reconsideration, arguing that she had “clearly” erred by ordering the unsealing of the documents. Citing an Eleventh Circuit decision called Chicago Tribune Co. v. Bridgestone/Firestone, prosecutors argued that a heightened First Amendment standard does not apply to documents filed in connection to a motion to compel discovery. Instead, they contended, the government needs to only show “good cause” for sealing requests related to materials attached to a motion to compel. The special counsel’s office did meet its burden of showing good cause in its original request to keep the documents sealed, they said, pointing to concerns such as witness safety and the protection of national security information. 

Trump, meanwhile, opposed the special counsel’s motion for reconsideration, and a coalition of media outlets intervened in support of unsealing the documents.

The court takes matters of openness “quite seriously,” Judge Cannon says now. And for that reason, the court ordered a hearing on the matter, she concludes. 

Turning to the parties, Judge Cannon first invites Dana McElroy to argue the matter on behalf of the press coalition. 

At the lectern, McElroy argues that public faith in trial proceedings are a “cornerstone” of democracy. The media coalition’s position, she says, is that the court must apply “precisely” the correct standard in determining whether redactions or sealings of judicial records are warranted. Here, she continues, the court correctly applied the “heightened scrutiny” standard that would be appropriate in a case of this magnitude. 

What’s more, McElroy says, the substance of the filing at issue reveals that it is not simply a “discovery motion,” despite the special counsel’s portrayal of it as such. Instead, she says, the motion raises issues regarding selective prosecution that go to the “heart of this case.” For that reason, the motion associated with the filings at issue is no “garden variety” discovery motion. 

Judge Cannon, for her part, tosses questions at McElroy: To what extent is the Eleventh Circuit’s decision in Chicago Tribune extendable to the context of a criminal case? Does it make a difference if the criminal defendant is not the party seeking to redact or seal materials? The special counsel’s office relies on the Eleventh Circuit’s decision in United States v. Anderson, but didn’t that case involve a 404(B) notice rather than a motion? 

The overall tenor of her questions suggest that Judge Cannon is searching for ways to distinguish the controlling Eleventh Circuit precedent cited by the special counsel’s office in its motion for reconsideration. 

McElroy is finished, and Harback strides to the lectern on behalf of the special counsel’s office. He opens by addressing the why of it all: The government has put time and effort into litigating these redaction requests, he says, because it is responsible for protecting witnesses and witness identities. In this case, he says, that’s especially important because there are concerns about threats, harassment, and so on. It’s not a hypothetical, he says. These are real concerns, and the defendants know that. That’s why, he repeats, the government has put so much time into briefing the issue.

But you didn’t initially, Judge Cannon says. She’s referring to the government’s initial briefing on the matter, which gave short shrift to the media coalition’s substantive arguments.

Harbach, conciliatory, acknowledges that the government “initially” over-relied on the protective order put in place by Mag. Judge Reinhart. If we had the opportunity to do it over again, he admits, we would do it differently. And at no point did we mean any disrespect to the court by moving for reconsideration, he adds. 

Turning to the substance of his argument, Harbach cites Chicago Tribune, which he says stands for the proposition that there is no First Amendment right of public access to discovery materials. What’s more, he says, the discovery materials appended to the defendants’ motion to compel are subject to a protective order issued by a judge of this court. 

Judge Cannon interjects to say that, while she “takes the point,” a protective order is just a “contract between the parties.” It doesn’t tell us anything about what has to be shown to justify a request for sealing or redactions. And she adds that the “trouble” with the special counsel’s position is that it suggests that the First Amendment right of access doesn’t apply no matter how the discovery materials are used in a pretrial motion. 

That’s not our position, Harbach says. What matters is the type of motion associated with the discovery materials. Here, he says, the defendants’ motion to compel is a “mainline” discovery motion, which means that a heightened First Amendment standard is not applicable. 

Judge Cannon doesn’t seem convinced. While acknowledging that these are “complicated” issues, she says that one thing is certain: There’s no clear precedent from the Eleventh Circuit that would suggest that she clearly erred in ordering the unsealing of the materials. 

Now Judge Cannon says she’s ready to get down to the “nuts and bolts” regarding the special counsel’s specific requests for redactions. There may be some justification for potentially redacting potential witness names, she says, but she thinks the argument “really starts to fall apart” when it comes to redacting the substance of witness statements. By the way, she wonders aloud, how many potential witnesses are there in the government’s case?

Harbach, after conferring briefly with Bratt, tells Judge Cannon that the government initially provided a list of roughly 80 prospective witnesses as a part of Trump’s conditions of bond. Since then, however, the list of potential witnesses the government expects to call at trial has narrowed to approximately 40 people. 

Judge Cannon asks Harbach if he has any additional information to “substantiate” his concern that publication of witness names will lead to intimidation. It may not be possible, she says, to shield everyone from the internet. And the cases I’ve looked at refer to actual rather than hypothetical threats or specific concerns raised by witnesses. So in that sense, she tells Harbach, your position is “unprecedented.”

Harbach, in turn, says that courts should take “prophylactic” steps to protect witnesses. A witness shouldn’t have to be threatened to warrant protection, he says. 

Right, Judge Cannon says, but there should at least be a particularized showing. Are there any witnesses in this case that have raised concerns about their safety?

Harbach replies that the government has “made reference to them” in a sealed, ex parte filing. 

And there really was no reason to file that ex parte, Cannon says, but I know you take a different view. She’s referring to the government’s request—which Cannon ultimately rejected—to keep the sealed materials out of the hands of the defense.

Then Judge Cannon asks Harbach when the government might be prepared to publish its witness list—an unusual question considering that witness lists in high profile cases such as this are typically kept sealed prior to trial. 

The question seems to provoke a reaction from special counsel Jack Smith, who has otherwise worn a neutral expression as he observes the hearing from his seat just behind Harbach and Bratt. Now, however, he raises his eyebrows in apparent shock. 

Harbach is done, and it’s Bove’s turn at the lectern on behalf of Trump. 

“This is a frivolous motion,” Bove begins. Trump, he says, has been sitting here in this courtroom today while he should be campaigning…

Before Bove can get around to the point, however, Judge Cannon intejects: “Ok, ok…talk about the legal merits,” she says with the faintest hint of annoyance. Then she asks for Trump’s position on the special counsel’s request to redact witness names.

Bove, complying with Cannon’s request, says that the government has not made a “particularized showing” to justify its request. 

Judge Cannon replies that, in the special counsel’s view, it’s “obvious.” Anyone associated with these types of high-profile cases, she says, may be attacked online or whatever it may be.

Bove, however, insists that the government must make a case-specific showing. We don’t have the information they have about the alleged “risk” to witnesses, he says. We just don’t know, so we’re not going to blindly do whatever the government says just so the press coalition can come in and say that President Trump is trying to hide things from the public. 

Harbach, for the special counsel’s office, briefly returns to the lectern for rebuttal. He tells Judge Cannon that the special counsel’s office would be willing to work with the defense to find a mutually-agreeable compromise regarding proposed redactions. But the defense, he says, has not been willing to do that. 

I can tell that you’ve made good faith efforts to work with them on redactions, Judge Cannon tells Harbach. But it’s clear that these redaction issues are “complicated,” she says, so I will take your motion under advisement. 

And with that, Trump’s hearing double-header in Florida and Georgia are done. 

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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