Fulton DA pushes back against legislators fighting subpoenas

Credit: Natrice Miller / Natrice.Miller@ajc.com

Credit: Natrice Miller / Natrice.Miller@ajc.com

‘Where dishonesty or misinformation was the result, Members should be subject to questioning’

Fulton County District Attorney Fani Willis on Thursday challenged several Republican members of the state Legislature who argue they’re largely immune from testifying before the special grand jury investigating attempts to overturn Georgia’s 2020 election results.

In a motion filed in Fulton Superior Court, Willis said that those lawmakers couldn’t cite legislative immunity, a concept laid out in Georgia’s Constitution, for activities that fall “entirely outside the General Assembly’s jurisdiction or legitimate activities.”

Willis cited December 2020 hearings featuring testimony from former President Donald Trump’s personal lawyer, Rudy Giuliani, that peddled falsehoods and conspiracy theories about the state’s elections. Even though Giuliani’s claims were disproven by state authorities, Willis highlighted a report authored by a Senate subcommittee that echoed many of those untruthful claims.

“The General Assembly cannot, either in 2020 or today, ‘rectify’ election results by changing the outcome of a certified election that has already taken place, and it is never, and can never be, considered a legitimate ‘legislative duty’ to attempt to do so,” Willis wrote.

The filing came in response to a motion filed on behalf of Lt. Gov. Geoff Duncan; former state Sen. William Ligon of Brunswick; and several other unnamed members of the Legislature earlier this week to quash subpoenas compelling their testimony as part of the investigation.

Those lawmakers argued that the state Constitution bars prosecutors from asking them about their legislative activities, including committee hearings. They urged Judge Robert McBurney to set down guidelines to which the DA must adhere if lawmakers testify about other matters.

“The importance of both legislative immunity and legislative privilege cannot be overstated: These provisions enable legislators and their staff to communicate with one another free from the fear that their communications will later be reviewed or questioned by another branch of the government or by any private party in the course of litigation,” their attorneys wrote.

McBurney, who is overseeing the grand jury, is scheduled to hold a hearing on the matter on Friday.

Willis said the legislators were wrongly seeking to “apply the broadest possible brush” when it comes to legislative immunity “to limit the scope of the special purpose grand jury’s inquiry.”

“Where dishonesty or misinformation was the result, Members should be subject to questioning by the special purpose grand jury,” wrote the DA.

Willis said she welcomed McBurney’s guidance on which types of questions are within bounds. But she said the judge will likely need to make individual determinations based on the activities that each lawmaker was involved in.

She specifically asked for McBurney to weigh in on Duncan, who serves in both a legislative capacity as president of the state Senate and as an executive officer.

Duncan has spoken against the “Stop the Steal” movement and urged his party to move past Trump. But Ligon was one of the General Assembly’s most vocal proponents of decertifying the election results that showed Joe Biden as the winner of Georgia’s 16 electoral votes.

Ligon organized a special Senate committee to examine election fraud claims, invited Giuliani as a guest and later authored a report that echoed many of the attorney’s conspiracy theories. That report urged the Legislature to convene in a special session and “act to determine the proper Electors to be certified to the Electoral College.”

Willis wrote that “it is outrageous to claim a mantle of protection for legitimate legislative duties when one’s own actions sought to reduce the legislature to a laundry for falsehoods and illegalities. It is a matter of public record that this is exactly what occurred in Mr. Ligon’s report.”

In the motion filed on behalf of Ligon and other legislators, attorneys argued that “it’s important the different branches of government be allowed to operate without the undue influence of another branch.”

Brandon Bullard, an Atlanta-based appellate attorney unaffiliated with the case, said it will be up to McBurney to create some sort of legal test that determines what reasonably falls inside the scope of legislators’ duties. While the issue is relatively untested on the state level, McBurney could look at federal standards regarding Congress and the U.S. Constitution’s “speech and debate” clause, he said.

“I really think McBurney’s going to end up having to go topic by topic and say, ‘well this is in and this is out. If you get this then you can only go so far,’ said Bullard. “This is an incredibly difficult exercise that he will have to go through, because what he doesn’t want to do is overstep”

Bullard said he expects the task may require McBurney to micromanage the types of questions that prosecutors can ask.

“That’s not something that is typically done,” he said. But of course nothing about this case is typical.”