Could a Gag Order Be on Deck for Fani Willis?

(The Atlanta Journal-Constitution/TNS) — A New York judge this week imposed a gag order on Donald Trump, limiting what the Republican can say about witnesses, jurors and most prosecutors ahead of his April trial over alleged payments to silence people with damaging information.

Some 850 miles away, the judge in another one of Trump’s criminal cases suggested he’s open to considering a similar measure — not against the former president, but Fulton County District Attorney Fani Willis.

In a recent ruling, Fulton Superior Court Judge Scott McAfee all but invited any of the 15 remaining defendants in the election interference case to seek an order that would limit what Willis and her team could say outside of court.

McAfee wrote that the DA’s fiery speech earlier this year to a historically black church in Atlanta — where she suggested her critics were playing the “race card” — didn’t cross the red line of denying defendants a fair trial. But the remarks, he said, were “legally improper.”

“The time may well have arrived for an order preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial publicity,” the rookie judge wrote in a March 15 decision that resisted an attempt to remove Willis and her office from the case. But McAfee noted that a gag order was “not the motion presently before the Court.”

The passage offers what could be an enticing option for defense attorneys seeking an edge over Willis. But, so far, none have taken the bait.

Three defense attorneys interviewed this week by The Atlanta Journal-Constitution, two of whom spoke on the condition of anonymity to discuss legal strategy, indicated that they don’t see a benefit to muzzling Willis — at least not for now. Two said they are instead hoping Willis will say things publicly that they can exploit in court and in public.

“Let them keep making this a better case for us,” one defense attorney said of the prosecution.

A Willis spokesman declined to comment for this story.

But the DA has showed no signs of backing down. Speaking to reporters after a recent charity event, Willis defended her conduct and said that “the train is coming” in the high-profile racketeering case.

‘Sufficient risk’ 

Gag orders against DAs are fairly rare. There are state rules of professional conduct that generally limit what prosecutors can say about a case outside the courtroom to prevent comments that could taint a jury pool.

News organizations have routinely fought against gag orders in cases, arguing they erode First Amendment principles.

But they are becoming almost commonplace in trials involving the former president, who has used his vast platform to attack the prosecutors, judges, court employees and witnesses. That includes Willis and Nathan Wade — who led the Trump case as a special prosecutor until it was revealed that he had had a relationship with Willis — as well as would-be witnesses in the Georgia case, including Gov. Brian Kemp and Secretary of State Brad Raffensperger.

On Tuesday, Trump was put under his third gag order in recent months ahead of the April 15 start of a Manhattan trial over his alleged falsification of business records in making the payments to silence embarrassing information. The order from acting New York Supreme Court Justice Juan Merchan bars Trump from making statements about potential witnesses or jurors, court staff, Manhattan prosecutors (with the exception of DA Alvin Bragg) and their families.

Trump’s track record of “prior extrajudicial statements establishes a sufficient risk to the administration of justice,” Merchan wrote.

Casting aspersions 

While Trump hasn’t held back from complaining about Willis and Wade on his social media site and during campaign events, the heat most recently in the Fulton case has been on the DA’s office.

As they sought to disqualify the DA due to an alleged financial conflict of interest from her relationship with Wade, defense attorneys highlighted public comments Willis made to the press throughout the course of her investigation, and particularly to the authors of a recent book about the veteran prosecutor.

The group, led by Trump’s top Atlanta attorneys, Steve Sadow and Jennifer Little, alleged that Willis had committed so-called “forensic misconduct,” improperly commenting on her personal belief in the defendants’ guilt in a case, which is a disqualifying offense in Georgia.

They zeroed in on Willis’ speech at Big Bethel AME Church in downtown Atlanta on Martin Luther King Jr. Day weekend, during which the DA insinuated her critics were focusing on her relationship with Wade because he is black.

Willis’ comments, Sadow and Little said, were part of a “glaring, flagrant, and calculated effort to foment racial bias into this case.”

McAfee concluded that while the speech didn’t specifically name a defendant, it had the effect of “cast(ing) racial aspersions” at the defendants who filed the motion to disqualify Willis.

“Providing this type of public comment creates dangerous waters for the District Attorney to wade further into,” McAfee wrote.

So far, Willis doesn’t appear to be cowed by McAfee’s ruling. She spoke to several media organizations last weekend during a charity event about her reputation, the case timeline and who might fill Wade’s shoes on the case.

Her comments prompted a brassy response from Sadow on X, the social media platform formerly known as Twitter.

“Apparently Judge McAfee’s warning to Willis in his disqualification order about talking about the case in a public forum is simply being ignored,” Sadow wrote. “Does that surprise anyone??”

Ashleigh Merchant, the defense attorney who quarterbacked the push to remove Willis and her office on behalf of her client Michael Roman, said she doesn’t like gag orders but that her decision on whether to seek one “would be evolving, depending on what’s said.”

‘Everybody’s talking’ 

Even though some defendants don’t want to seek a gag order, others pursuing a different approach may find it advantageous for Willis to lose her megaphone ahead of the trial. (Willis is also up for reelection this year, and a gag order could create a political headache for her.)

That strategy, however, could backfire. Prosecutors could turn around and seek to muzzle speech from defendants, which could harm the legal strategies for some who seek to lambaste the DA and others on social media.

Amy Lee Copeland, a Savannah-based attorney and former federal prosecutor, said she doesn’t think defendants will ultimately seek a gag order.

“I think they’re going to hope that she makes more public statements that they perceive hurt her or hurt the case,” she said. “I think the DA would be wise to act as if there were a gag order in the case and just not speak publicly about it anymore.”

Gerald Griggs, a defense attorney who leads the Georgia chapter of the NAACP, said that if McAfee wants to limit pre-trial publicity, he needs to issue a blanket gag order for all parties in the case.

“My concern in this case is everybody’s talking… the defense attorneys are talking, the prosecution is talking, the judge has given several interviews,” he said.