Fulton DA pushes to remove lawyers, OK search warrants before election break

Fulton County District Attorney Fani Willis and former President Donald Trump (Natrice Miller, Hyosub Shin/The Atlanta Journal-Constitution)

Credit: AJC

Credit: AJC

Fulton County District Attorney Fani Willis and former President Donald Trump (Natrice Miller, Hyosub Shin/The Atlanta Journal-Constitution)

A pair of legal filings from Fulton County prosecutors this week suggests their criminal investigation into attempts to influence Georgia’s 2020 elections is reaching a new, more sensitive stage.

The District Attorney’s office on Monday sought to disqualify a pair of lawyers representing 11 Republicans who falsely purported to be Georgia’s presidential electors, suggesting to some legal experts that prosecutors could be seeking to strike immunity agreements or plea deals with some participants in exchange for information about more culpable parties.

“Given the length of time that has transpired since the target letters went out, one or more of the fake electors have gotten independent counsel who have approached (Fulton DA) Fani Willis and have negotiated separate agreements,” said Atlanta defense attorney Buddy Parker, a former federal prosecutor.

A separate filing that day stated the DA’s office was seeking to obtain and execute a series of search warrants based on unnamed “sensitive information acquired during the investigation,” though the document didn’t state who was being searched or what was being sought out.

The moves come five months after a rare special purpose grand jury was seated to aid in fact-finding for the criminal investigation, and days before a month-long pause in public activity that Willis has promised ahead of the November elections.

District Attorney Fani Willis (center) reacts to proceedings at Fulton County Superior Court on Thursday, July 21, 2022. (Arvin Temkar / arvin.temkar@ajc.com)

Credit: arvin.temkar@ajc.com

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Credit: arvin.temkar@ajc.com

The order related to search warrants was signed by Fulton Superior Court Judge Robert McBurney, who is overseeing the grand jury. The document indicated that any warrants, affidavits, non-disclosure orders or related documents would be sealed from the public unless otherwise ordered by the court.

“The Court finds that disclosure of this information could compromise the investigation by, among other things, causing flight from prosecution, destruction of or tampering with evidence, and intimidation of potential witnesses,” McBurney wrote. “Some disclosures could also substantially risk the safety and wellbeing of the individuals involved in the investigation including, but not limited to, witnesses, subjects, law enforcement officers, and officers of the Court.”

‘Serious ethical problems’

Meanwhile, in a partially redacted 20-page filing, the DA’s office argued that legal representation by Holly Pierson and Kimberly Bourroughs Debrow for 11 of the 16 “alternate” GOP electors is “rife with serious ethical problems” and urged McBurney to bar them “from any further participation in this matter.”

On July 5, the DA’s office put all 16 of the false electors on notice that they were targets of the criminal investigation. (Willis and her office are now barred from investigating one participant, state Sen. Burt Jones, due to a conflict of interest after Willis held a fundraiser for Jones’ Democratic opponent for lieutenant governor.)

Prosecutors said Pierson’s and Debrow’s work violates the rules of professional conduct for lawyers, which states attorneys can’t represent a person if there’s “significant risk” that their work on behalf of another client “will materially and adversely affect the representation” of that person. They argued that if the duo is allowed to continue representing even one of the electors, “there is a serious possibility of future ethical problems concerning confidentiality of information obtained in the course of their representation thus far.”

Pierson and Debrow are representing Mark Amick, Joseph Brannan, Brad Carver, Vicki Consiglio, John Downey, Carolyn Fisher, Kay Godwin, Cathleen Latham, David Shafer, Shawn Still and C.B. Yadav. Shafer is the chair of the state GOP, and several others were top party officials on Dec. 14, 2020, when the group signed their names to a certificate claiming to be Georgia’s duly elected presidential electors for then-President Donald Trump despite Democrat Joe Biden being certified the winner of Georgia’s electoral votes.

Pierson and Debrow said in a joint statement that any suggestion that they had violated their professional duties “is false and defamatory.”

“We are disappointed to see the District Attorney and her office actively trying to separate citizens from their chosen counsel,” the statement says. “Allegations of conflict here are particularly rich, given that the Court has already determined that the DA herself had a disqualifying conflict of interest in this case.”

Pierson and Debrow said their clients had “followed the letter and spirit of the law,” and they previously cited as precedent the appointment of contingent slate of Democratic electors during a Hawaii recount in 1960.

“Both the U.S. Supreme Court and the Georgia Supreme Court recognize that there is no actual or potential conflict in representing multiple individuals united in their innocence whose defenses against false allegations of wrongdoing are aligned,” the two lawyers stated Monday.

A spokesman for Willis declined to comment.

Georgia casts its 16 electoral votes for Joe Biden

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Big and small fish

It’s not unusual for prosecutors to contest lawyers who represent multiple parties in a case to decrease the likelihood that a conviction could get overturned on appeal, said Atlanta attorney Andrew Fleischman.

“Let’s say that Fulton County goes to one person and says ‘I’ll offer you a million dollars and a pony to testify against everybody else.’ That’s a great deal. But would this lawyer be able to advise their client to take that deal without a huge conflict of interest for the other clients?” Fleischman said. “Because she’d be telling her client to hurt everybody else, even though that’s absolutely in that client’s best interest.”

Caren Morrison, a former federal prosecutor and associate professor at Georgia State University’s law school, said it’s harder for prosecutors to cut deals with some investigation targets if they’re represented by attorneys who are defending other, related parties.

“Prosecutors don’t want to deal with that,” she said. “They want to be able to streamline the case... They want to focus on the big fish and get as much help from the smaller fish as they can.”

Retaining one set of lawyers, Morrison said, often acts like peer pressure for a group of clients.

If “you keep everybody together there’s not going to be anybody making any side deals,” she said. “You keep control of the case that way — or a certain amount of control to the extent you can.”

Federal records show that the Georgia Republican Party paid Pierson’s law practice more than $25,000 in early July, a few days after the electors were sent target letters, while Debrow’s firm was paid just shy of $10,000. It’s not clear whether the fee went toward their work with the electors or for something else.

Pierson and Debrow previously fought their clients’ subpoenas after they were sent target letters, and they joined Jones’s separate effort to disqualify Willis from their portions of the investigation.

Fulton Superior Court Judge Robert McBurney addresses counsel for Gov. Kemp during a hearing on Georgia Governor Brian Kemp's motion to quash his subpoena from the special purpose grand jury in Atlanta, GA, on Thursday, August 25, 2022. (Bob Andres for the Atlanta Journal Constitution)

Credit: Bob Andres

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Credit: Bob Andres

McBurney directed the 11 electors to honor their subpoenas. During a previous court appearance, Pierson indicated that her clients would be substantially invoking their Fifth Amendment rights against self-incrimination to the point of not even giving their names.

In a statement on Monday, Pierson and Debrow said their clients “have not been charged with any crimes, and are not ‘defendants.’”