Willis filed a motion last week asking Superior Court Judge Scott McAfee to revoke Floyd's bond. In her first in-person appearance in this case since the indictment, she argued in court that Floyd has been attempting to intimidate and contact likely witnesses and his co-defendants in violation of the terms of his release.
Floyd's lawyers argued that his social media posts are constitutionally protected speech and that he was in no way trying communicate with or intimidate any witness or co-defendant.
McAfee said there is no constitutional right to bail and that bond orders can contain conditions that curtail a defendant's rights, but he also noted that people are generally allowed to publicly criticize the merits of the case but cannot cross a line. He said Floyd appears “very boldly willing to explore where that line is" in this case.
McAfee said he did believe there had been a “technical violation” of Floyd's bond conditions but that not all violations merit revocation.
McAfee said he didn't believe that Floyd's posts amounted to intimidation, pointing out that they didn't include posting of personal information or any explicit wording that something should be done about the people he mentioned. But he said the question was much closer when it comes to whether Floyd was trying to directly or directly communicate with witnesses or codefendants, noting that the people did end up seeing his posts.
“I think the public safety interests raised as a result of today’s hearing indicate that his actions have a consequence,” the judge said.
After discussion with the lawyers, and over some objections from Floyd's attorneys, McAfee signed a modified bond order proposed by prosecutors.
The new bond conditions say Floyd shall have “no contact” with or do anything to intimidate any co-defendant, witness or person named in the indictment. They also prohibit him from making any public statement about any of those people and from posting anything about them or contacting them in any way on social media. That includes not interacting with a post by any other user that would violate the order if he had been the one who posted it.
Floyd attorney Chris Kachouroff complained that the order would effectively “muzzle” his client. McAfee said rushing to modify the order while sitting there could cause problems but that he was open to modifying the terms in the coming weeks.
“I think what the judge did was fair,” Kachouroff said after the hearing. “I don't like it, but he's within the realm of reason.”
The charges against Floyd relate to allegations of harassment toward Ruby Freeman, a Fulton County election worker who had been falsely accused of election fraud by Trump and his Republican supporters. Floyd took part in a Jan. 4, 2021, conversation in which Freeman was told she "needed protection" and was pressured to lie and say she had participated in election fraud, the indictment says.
Floyd was among 18 people charged along with Trump and accused of participating in a wide-ranging scheme to illegally try to keep the Republican incumbent in power even after he lost the presidential election to Democrat Joe Biden.
Four defendants have pleaded guilty after reaching a deal with prosecutors that includes a promise to testify in any trials in the case. Trump and the others have pleaded not guilty. No trial date has been set, but Willis last week asked McAfee to set it for Aug. 5, 2024.
Floyd was the only defendant in the case who spent time in jail after his indictment because he's the only one who didn't have a lawyer reach an agreement on bond conditions before he turned himself in at the Fulton County Jail. The conditions of his release include not communicating directly or indirectly about the facts of the case with any of his co-defendants or any known witnesses.
Willis stressed that her concern was protecting witnesses and making sure the defendants get a fair trial.
“He can publicly criticize me all he wants. I don’t value his opinion. It doesn’t matter,” Willis said. “But what he may not do is publicly do things that intimidate witnesses, and so that needs to be clear.”
She called three witnesses during Tuesday's hearing — an investigator in her office, a high-ranking official in the Georgia secretary of state's office and an attorney for Freeman. She walked them through numerous posts Floyd had made on social media.
The investigator testified that he had communicated with a lawyer for Jenna Ellis, a co-defendant who pleaded guilty last month. The lawyer said Ellis had seen Floyd's post accusing her of lying and believed that it was meant to harass or intimidate her or to encourage others to do so.
Gabriel Sterling, a top secretary of state's office official who strenuously defended the legitimacy of the state's 2020 vote count against Trump's false claims that he won said he had seen Floyd's posts insulting him and Secretary of State Brad Raffensperger. But he said posts like that are "par for the course" for a public official.
Freeman's lawyer, Von Dubose, said a service his team pays to monitor threats to Freeman and her daughter had noticed a spike in such activity related to Floyd's posts. Floyd's attorneys disputed that the threat activity in that report could be reasonably attributed to his posts.
They also noted that while Trump's bond order specifically puts limits on certain social media posts as part of his bond conditions, Floyd's does not. They argued that Floyd's posts were protected speech and that attempting to communicate with anyone by tagging them on social media is analogous to shouting to someone across a crowded stadium. They also argued that Floyd didn't attack Freeman and views her as a favorable witness for his defense.