Two courts are limiting Georgia county prosecutor Fani Willis’s use of a special grand jury to interrogate Republicans about the 2020 election, but the Fulton County Democrat’s political witch hunt continues with subpoenas still outstanding targeting Sen. Lindsey Graham, R-S.C., and top GOP lawyers.
In January 2022, Fulton County District Attorney Fani Willis sought authorization of a “special purpose grand jury” to investigate “any coordinated attempts to unlawfully alter the outcome of the 2020 elections in this state.” On May 2, 2022, the special purpose grand jury was selected and sworn in, and then in June, it began receiving evidence. In early July, news broke that Willis had obtained permission to subpoena several of Trump’s election lawyers, including Rudy Giuliani, John Eastman, Jenna Ellis, Cleta Mitchell, and Kenneth Chesebro, as well as Graham and attorney and podcast host Jacki Pick Deason.
From the start, Willis’s empaneling of a special purpose grand jury had the stench of a political hit job, with the prosecutor not seeking indictments but merely a report and recommendations. Then came her public targeting of high-profile names in the Republican world and her false framing that Trump’s lawyers “parroted claims of voter fraud” during a conversation with Georgia Secretary of State Brad Raffensperger. The transcript of that January 2, 2021, telephone call between Trump, his legal team, and Raffensperger’s office, however, contradicts Willis’s claim and also established that Trump did not ask Raffensperger to “find” 11,780 votes during the call. Rather, Trump’s legal team wanted the secretary of state’s office to investigate some 30-plus categories of violations of Georgia election law.
In addition to the nationally known names, Willis targeted many top Georgia Republicans including state Sen. Burt Jones, who is the current Republican candidate for the 2022 general election for lieutenant governor. On Monday, however, a Fulton County judge held that “this District Attorney and her special prosecution team may no longer investigate Senator Jones” and may not subpoena him or obtain any records from him via subpoena. Fulton County Superior Court Judge Robert McBurney further held that Willis and her special prosecution team “may not publicly categorize [Jones] as a subject or target (or anything else) of the grand jury’s investigation, and they may not ask the grand jury to include any recommendations about him in their final report.”
McBurney barred Willis and her special prosecution team from investigating Jones because on June 14, 2022, “well after the grand jury had begun receiving evidence from witnesses called and examined by the District Attorney’s team of prosecutors, the District Attorney hosted and headlined a fundraiser for [Charlie] Bailey.” At the time, Bailey was in a run-off contest to be the Democrat nominee for lieutenant governor to run against Jones in the November 2022 general election.
“By this time,” the court explained, “media coverage of the grand jury proceedings was national and non-stop and the District Attorney was the very public face of those proceedings. She also was one of the faces of the Bailey fundraiser announcement: it prominently featured the District Attorney’s name, photo, and title and was widely shared on Bailey’s campaign’s social media outlets.” Thus Willis had “bestowed her office’s imprimatur upon Senator Jones’s opponent,” the court explained, stressing that “since then, she has publicly (in her pleadings) labeled Senator Jones a ‘target’ of the grand jury’s investigation.” The court then concluded that this “scenario creates a plain—and actual and untenable—conflict,” and therefore Willis and her prosecution team must be disqualified from investigating Jones.
Although the Fulton County judge disqualified Willis and her prosecution team from investigating Jones, the court denied the request made by 11 alternative Republican electors who also sought to toss Willis from the case.
“There has been no showing that the District Attorney or any member of her prosecution team is impaired by a conflict of interest vis-à-vis any of these individuals,” the court reasoned, noting, for instance, that while one of the 11 individuals subpoenaed is running for the state Senate, neither Willis nor anyone else from her office “has materially supported” his opponent’s campaign.
Under other circumstances, the court’s reasoning might work, but in this case, as even the judge’s own analysis makes clear, the Democrat prosecutor is not conducting a typical criminal investigation where conflicts of interest can be disposed of so simply.
Here, for instance, while the special grand jury has no power to indict, Willis branded Jones a “target,” which as the Fulton County judge noted is “borrowed from federal criminal practice,” and “is a bit confusing in the context of this grand jury, which has no power to bring criminal charges against anyone.”
So why use that term? It is, as the county judge explained, “a potent investigative signal” that individuals identified as “targets” are “more closely connected to the alleged electoral improprieties than other witnesses who have come before the grand jury or who may yet do so.” And Willis casts every other Republican she frames as a “target” in a similarly negative light.
The “alleged electoral improprieties” language is a second giveaway as it illustrates precisely what is in play: Willis isn’t investigating a crime—she has the Republicans in her sights, and she is searching for a crime. And the public process serves as a political gift to her fellow Democrats.
“Candidate Bailey has wielded the District Attorney’s investigation as a cudgel in his campaign against Jones,” the court noted in its opinion, linking to a quote attributed to the Democratic candidate saying, “The only danger to safe and secure elections is people like Burt Jones, who come in and substitute their will for the will of the voters and try to overturn the election.” The court in Monday’s opinion saw the conflict at play as an “actual” conflict when it came to Republican Jones because “any public criminal investigation into Senator Jones plainly benefits candidate Bailey’s campaign, of which the District Attorney is an open, avid, and official supporter.”
But the entire special grand jury investigation equally benefits the entire Democrat Party, as well as Willis’s political future within her party, given that, as noted above, “media coverage of the grand jury proceedings was national and non-stop and the District Attorney was the very public face of those proceedings.” And does anyone doubt that Willis is an open, avid, and official supporter of the Democrat Party?
While her social media presence has been limited, in 2018 when she unsuccessfully ran to serve as Fulton County judge, she retweeted support for other Democrats, including Stacey Abrams, with the hashtags #BlueWave and #Resist, reminding voters of the runoff election date. Willis is likewise deeply connected to the Georgia Democrat establishment through Jeremy Halbert-Harris, who helped her win the D.A. race and was also the coordinated campaign director for Biden For America in Georgia. Halbert-Harris then served as the runoff senior political and field adviser for the Jon Ossoff and Raphael Warnock senatorial campaigns, the Democratic Senatorial Campaign Committee, and the Democratic Party of Georgia.
Judges understandably don’t want to disqualify prosecutors based on piddling politics and potential conflicts of interest, but a non-grand jury, grand jury investigation, run by a Democrat, targeting Republicans, and which is used by Democrats for political gain presents a different case. If there were any doubt about that conclusion, ask yourself whether it’s likely that Willis will use her investigation to propel her to rising-star status in the Democrat Party.
For now, though, Willis’s crusade will continue—but not without a second check by the federal courts. And on Monday, a federal district court in Georgia handed the county prosecutor another setback when the court ruled on Republican Rep. Jody Hice’s motion to quash Willis’s subpoena. In response to Hice’s motion, the court ruled that both the Speech or Debate Clause of the Constitution and the “high-ranking official” doctrine “may operate to prevent the Fulton County District Attorney’s Office from obtaining answers to certain questions from Congressman Hice before the Special Purpose Grand Jury.”
While Hice had initially sought to quash the subpoena entirely, the parties agreed during the hearing on Hice’s motion that some questions may be the appropriate subject of investigation. Accordingly, the federal court held “that the record should be more fully developed,” meaning, in essence, that specific questions should be posed to the congressman and objections asserted, at which time the parties could return to the court for a ruling on the Speech or Debate Clause and high-ranking official doctrine’s applicability.
That ruling represented a setback for the Fulton County prosecutor for several reasons. First, Willis had argued that the high-ranking official doctrine did not apply to Hice. Second, the Georgia Democrat argued that the state court judge could adequately consider any Speech or Debate Clause objections, but the federal judge’s ruling ensures any federal constitutional challenges based on that clause will be decided by a federal court, including potentially in an appeal to the 11th Circuit Court of Appeals. Third, and relatedly, knowing that she will need to return to a federal court and potentially face an appeal to a federal circuit court will likely leave the county prosecutor more reticent in any planned fishing expedition.
Monday’s ruling by the federal court in Hice’s case also suggests problems for Willis in her attempt to force Graham to testify at all before the special grand jury because Willis had limited her claimed interest in Graham’s testimony to two specific conversations he allegedly had with Raffensperger. Given the narrow scope of the intended questioning of Graham, the South Carolina senator has a strong argument that the entire subpoena must be quashed because those conservations were fully protected by the Speech or Debate Clause.
Graham, who had previously sought to quash the Fulton County prosecutor’s subpoena in a South Carolina federal court, has yet to refile his motion in a federal court in Georgia but is likely to do so any day now. And given the strength of his constitutional arguments, Willis may be in for another defeat soon.