In his September 16 tweets, the Attorney General argues that “posting discovery would draw the objection of defendants, require the judge’s ruling n the state’s favor, and endanger any verdict in favor of the state on appeal. It’s not worth the risk … “
I view this argument from two sides – first, how it applies to discovery that the State obtains from the defendants, and second, how it applies to discovery the State provides from its own files to the defendants.
I can see the possibility that the defendants would object to the publication of their non-privileged documents produced in discovery. They could file a motion to keep them confidential “for good cause shown” under Rule 26(c). The Court could then decide whether to maintain confidentiality of some documents, some portions of documents, etc. From my discussions with fellow attorneys, there could be a possibility that a partial confidentiality order could be reviewed on immediate appeal and adjusted, but I think it is unlikely that a ruling on confidentiality could provide the basis for overturning a verdict.
On the other hand, the defendants would have no legal basis to ask the Court to impose confidentiality on the non-privileged discovery the State produces in response to the defendants’ requests. There is no legitimate legal reason why the defendants could seek to overturn a verdict in this case if the State releases its discovery publicly. (Of course, the State would protect all privileged documents from discovery and would not publish them.)
This distinction is important, because the public is probably most interested in the State’s discovery responses (State documents, State answers to the defendants’ interrogatories, and testimony of State witnesses in depositions conducted by the defendants). That discovery will reveal what the State did and what the State knew, bringing the transparency and accountability the public wants.
In a radio appearance, the Attorney General also claimed that publication of discovery materials could make it more difficult to find jurors who can hear the case with an open mind. I believe this claim is overstated, as courts have found a suffiicient pool of unbiased jurors for trials of notorious people and circumstances, such as the New York “hush money” trial of Donald Trump.