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Lawyers for several defendants in the Georgia criminal case against former President Donald Trump and others have been weighing whether to press for a gag order against Atlanta-area prosecutor Fani Willis, especially if efforts to disqualify her fail, sources familiar with the strategy discussions told CNN.
Willis has continued to speak publicly about the case, at times invoking race despite being rebuked by the presiding judge as the Fulton County district attorney juggles a reelection bid with prosecuting Trump and his 14 co-defendants. Some attorneys for high-profile defendants, though, are hesitant to try to silence her at this time.
A gag order against one of Trump’s biggest foes could score political points and help him and his co-defendants in the short term. But it could also backfire by undercutting their efforts to have Willis disqualified from the case, or by inspiring efforts to seek a gag order against Trump and other defendants who have publicly criticized Willis.
The deliberations come as several defendants, including Trump, have also tried and failed to have the Georgia election subversion dismissed. On Thursday, Fulton County Superior Court Judge Scott McAfee upheld the criminal indictment, rejecting efforts to dismiss the case on free speech grounds.
Appearing at an awards event Friday, Willis appeared to reference the backlash she’s faced for her public comments.
“Recently, they tell me they don’t like me to talk about race,” Willis told a crowd at an awards event on Friday. “Well, I’m gonna talk about it anyway.”
The district attorney’s comments come after more than two months of drama in which she ultimately avoided being disqualified from the racketeering case. McAfee ruled last month that Willis could remain on the case only if Nathan Wade, a fellow prosecutor with whom she had a romantic relationship, stepped down. Wade promptly resigned.
But McAfee paired his ruling on the matter with a sharp rebuke of public comments Willis had made about the case.
Appearing before an Atlanta church congregation in January, Willis defended Wade’s reputation, remarking, “Is it that some will never see a Black man as qualified – no matter his achievements?”
“Isn’t it them playing the race card,” Willis continued, “when they constantly think I need someone from some other jurisdiction in some other state to tell me how to do a job I’ve been doing almost 30 years?”
McAfee called Willis’ remarks at the January event “legally improper,” and said she effectively “cast racial aspersions” at a defendant who aimed to have Willis removed from the case. Then, McAfee appeared to suggest a gag order may be necessary.
“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, but that is not the motion presently before the Court,” McAfee wrote.
As the presiding judge over the sprawling case, the decision to implement any gag is ultimately up to McAfee.
A spokesperson for the district attorney declined to comment.
Attorneys involved in the case took note of McAfee’s admonition of Willis, but sources said some of them are waiting to see whether the Georgia Court of Appeals will take up an appeal by Trump and others who are still aiming to get Willis disqualified from the case.
“It has been tossed around,” said one defense attorney involved in conversations about a gag order who believes it is premature to ask McAfee to intervene. “Frankly as she continues to make outrageous public statements, she is digging herself further in a hole.”
At another public event for Easter, Willis warned that efforts to remove her from the case haven’t slowed her work and the “train is coming.”
Those remarks drew a rebuke from Trump’s attorney Steve Sadow, who posted on social media: “Apparently Judge McAfee’s warning to Willis in his disqualification order about talking about the case in a public forum is simply being ignored. Does that surprise anyone??”
Michael J. Moore, former US attorney for the Middle District of Georgia said some of her recent comments have been “like a thumb in the eye, I thought, to the judge.” But Moore added trying to shut down Willis’ ability to make public remarks before an appeals court weighs in on whether she should be disqualified could undercut those continuing efforts.
“You wouldn’t have wanted to already suggest an alternate remedy,” Moore said, then “the court of appeals can say since they’ve gone back to court and given you a gag order, this is resolved.”
Buddy Parker, the Georgia attorney representing Trump election attorney John Eastman in the case over efforts to overturn the 2020 election there, told CNN there’s little value in wading into a spat over public comments on the case when a trial date hasn’t been set. While Willis has been angling for an August trial date, the judge has yet to weigh in.
“I don’t know a reason to have a gag order right now,” Parker told CNN. “You have to be close to jury selection to have any impact. … If you have a trial in a year from now, you forget what she says anyway.”
Willis’ reelection fight this year adds another wrinkle in the possible pursuit of a gag order. She’s bound by rules preventing Georgia prosecutors from making comments outside of court that could influence a jury. But she also needs to maintain a public presence if she hopes to be reelected.
“I think that it’s very hard to say to a public official running for office that there is a gag order,” said one attorney involved in the case. “However, the rules of ethics regarding a prosecutor, which are enforceable, are quite clear as to what she can and can’t say about a pending case. I don’t think we need a gag order to say, ‘Obey the law.’”
McAfee, in a somewhat unconventional move, also has made public comments about the case in the media, a point that the district attorney’s office could use to argue against a potential gag order. McAfee is up for reelection this year, too.
Attempting to quiet the prosecutor may not prove worth the risk if defendants fear the judge could issue a blanket gag order forbidding both sides from discussing the case.
The former president already faces a gag order in his criminal hush money case that’s headed to trial later this month in New York. And several other defendants in the Georgia case, including former Trump attorney Rudy Giuliani and former Georgia GOP Chairman David Shafer, have offered commentary on the case and Willis on social media.
“You certainly could have a situation where what’s good for the goose is good for the gander, we’re just going to protect the jury from everybody,” said Moore.
