McBurney, however, did not indicate during an afternoon hearing how he would rule on one of the biggest questions laid before him: whether Fulton District Attorney Willis or her entire office should be pulled from at least one portion of the investigation because the DA held a fundraiser for the political opponent of one of probe’s targets, Republican lieutenant governor nominee Burt Jones.
The judge said the optics of that June fundraiser, for Democrat Charlie Bailey, were “horrific” and could undermine public confidence in the investigation. Yet he pressed Jones’ attorney, William Dillon, about whether there was enough of an actual conflict to justify disqualifying Willis or her office, at least from questioning Jones, who also served as a Trump elector.
“I don’t know that it’s an actual conflict, but… it’s a ‘what are you thinking’ moment,” McBurney said.
McBurney indicated that he was particularly troubled that the fundraiser was advertised on social media using Willis’ official title.
“That’s the concern I’m working through, is that it’s not a lower case ‘a’ appearance. It’s like a capital ‘a’ with flashy lights fundraiser with the district attorney for the political opponent of someone I’ve named a target of my investigation where I’m the legal adviser to the grand jury and I’m on national media almost nightly talking about this investigation,” McBurney said. “That’s problematic.”
Anna Green Cross. an attorney representing the DA’s office, noted that the fundraiser was held while Bailey was competing in the Democratic runoff — and it was still unclear which candidate would face off against Jones in the fall. The event was held weeks before a letter was sent notifying Jones he could be indicted, she said.
More importantly, Cross added, Willis hasn’t treated Jones any differently than any of the other electors in the investigation.
“It would be Sen. Jones’ and Mr. Dillon’s obligation to point to some action taken during the investigation that supports the allegation of a political motivation, and we just haven’t seen it here,” Cross said.
There are two main grounds for disqualifying a prosecutor from a case, according to the Prosecuting Attorney’s Council of Georgia: “forensic misconduct” or — more pertinent in this situation — a conflict of interest.
In 2005, when the Georgia Supreme Court upheld the bribery conviction of former state Corrections Commissioner Bobby Whitworth, the state high court said a conflict exists when “the prosecutor has acquired a personal interest or stake in the defendant’s conviction.” Also, an “actual conflict” must be involved and be more than a “theoretical or speculative conflict.”
McBurney said he plans to issue a written order soon.
The wide-ranging hearing, which stretched for two hours, addressed the two separate motions filed by Jones and the 11 other electors. But it also homed in on issues like alleged media leaks and the ethics training the DA’s office receives.
Holly Pierson, the attorney for the 11 electors, said that forcing her clients to testify before the grand jury — even about basic facts like their names — could put them in harm’s way because they’re targets of the investigation. She also warned about the potential for additional threats against her clients if they’re compelled to “frog march in front of the cameras.”
McBurney said there are ways to keep the electors out of view of the press and urged Pierson and the DA’s office to hammer out a framework for the types of questions that can be asked.
Dillon and Hannah Clapp, who represented Jones, zoomed in on Willis’ fundraiser for Bailey, which they said netted the Democrat $32,000.
“This is not something that’s being done by accident. This is being done by design,” said Dillon. “This fundraiser was pointed at benefitting Sen. Jones’ opponent.”
Dillon alleged that the DA’s office was leaking information to reporters and publicly disclosing details that should be kept private to hurt Jones. He pointed to a Tuesday filing from the DA’s office, which confirmed that all 16 Republicans who signed certificates claiming to be Georgia’s duly elected presidential electors were targets of the investigation.
He urged McBurney to rule that the state Attorney General’s office appoint another DA’s office who could question Jones.
“Find somebody who doesn’t have a dog in the hunt,” Dillon said. “Fani Willis has a dog in the hunt.”
Pierson pushed for something even broader: another DA who could oversee the entire investigation.
McBurney on Thursday was particularly definitive about something else: no October surprises. He said he would ensure that the final recommendations of the grand jury — advising whether or not the DA should pursue charges against anyone in the investigation — would not be released close to the election.
Staff writer Bill Rankin contributed to this article.