Fulton DA’s Trump probe enters more combative phase

Credit: Miguel Martinez /miguel.martinezjimenez@ajc.com

Credit: Miguel Martinez /miguel.martinezjimenez@ajc.com

Moves to kill subpoenas. Efforts to disqualify prosecutors. For DA Willis, disputes keep coming.

Over the last 18 months, a team of prosecutors and investigators from the Fulton County District Attorney’s office has been sifting through mountains of evidence.

They’ve pored over telephone logs, emails and text messages. Recordings of phone conversations, hearing transcripts and interview notes. A dense forensic analysis of Georgia’s new voting machines and documents detailing the audit and hand count of the state’s 2020 presidential election.

Dozens of witnesses, some from as far away as New York and New Mexico, have been subpoenaed by the 23-person special purpose grand jury appointed to aid in the criminal investigation, which is examining whether former President Donald Trump and his allies broke any state laws in their crusade to overturn Georgia’s last presidential election.

The hard part, however, may have only begun.

Recent legal filings and courtroom appearances suggest that much of the probe’s low-hanging fruit has already been picked. Prosecutors have seemingly spoken to the friendly — or at least non-hostile — witnesses who may have relevant information.

As DA Fani Willis barrels closer to the Trump White House, she has fought off a tide of motions to kill subpoenas. She’s countered arguments of legislative immunity, questions about her motives and attempts to remove her and her office from portions of the case — one of which was unexpectedly successful.

Credit: TNS

Credit: TNS

A far-right corner of the GOP has even started to push for Willis to be recalled, not unlike her San Francisco counterpart in June.

Over the last few days, the DA’s office successfully blocked an attempt from Trump’s personal attorney, Rudy Giuliani, to delay his testimony and argued before a federal judge that U.S. Sen. Lindsey Graham shouldn’t be able to dodge his summons.

That came during an extraordinary week in which FBI agents searched Trump’s Palm Beach, Fla., residence at Mar-a-Lago, and the former president reportedly invoked his Fifth Amendment rights against self-incrimination more than 400 times during a sworn deposition before lawyers from the New York Attorney General’s office.

In the days ahead, Fulton prosecutors will attend hearings in Santa Fe, N.M., and Fort Collins, Colo., in the hopes that local judges will compel out-of-state witnesses to testify in Atlanta. And they are scheduled to question Giuliani under oath before the grand jury on Wednesday.

Prosecutors also have to keep one eye on the calendar, as politics ramp up for the November midterm election — and Trump potentially announces his 2024 White House bid.

Trump entering the race would make it instantly more complicated for Willis to continue with her investigation. And Willis herself is up for reelection in 2024.

Finding the guardrails

Randy Evans, a longtime Republican lawyer who’s representing several witnesses subpoenaed by the grand jury, said Willis has encountered court fights because “she’s straying further and further from her core mission.”

Evans said he thinks Superior Court judge Robert McBurney, who is overseeing the grand jury, is willing to give Willis free reign around the Jan. 2, 2021 phone call that started the investigation: the conversation in which Trump asked Georgia Secretary of State Brad Raffensperger to “find” votes that would allow him to win.

Credit: Nathan Posner

Credit: Nathan Posner

“But I think as she started to stray, she started to discover … the guardrails,” said Evans, who served as Trump’s ambassador to Luxembourg.

Melissa D. Redmon, a former Fulton prosecutor, instead sees a methodical approach on the part of her former colleagues. Prosecutors start by asking witnesses about what they knew, when they knew it and from where they got their information, moving closer and closer to the most culpable parties for a crime.

“At some point you kind of work your way up the pyramid to the main players: who was giving the orders, what did they know, and that’s when you get people who are the targets moving to quash the subpoenas,” said Redmon, who’s now a clinical assistant professor at the University of Georgia’s law school.

From the beginning, Willis, a first-term Democrat known for her direct nature and indefatigable work ethic, has weathered criticism that her probe is a political sideshow. Even some aligned with her ideologically have argued that she shouldn’t be diverting her limited, taxpayer-funded budget away from fighting crime or eliminating the COVID-19 case backlog, especially to chase a litigious former president.

The question for Willis is how much farther she wants to expand her inquiry into Trump’s inner orbit, especially with elections looming.

“We’re just here doing the work and our due diligence,” Willis told The Atlanta Journal-Constitution last month.

At first, the witnesses seemed to arrive quickly and without much of a fight.

But the tide seemingly began to turn in late June.

Credit: Ben Gray

Credit: Ben Gray

Several members of the General Assembly, including Lt. Gov. Geoff Duncan and former Sen. William Ligon, were the first to publicly challenge their subpoenas.

Like Georgia Congressman Jody Hice, R-Greensboro, and U.S. Sen. Lindsey Graham, R-S.C., after them, they argued that the Constitution shielded them from testifying about most matters because of legislative immunity.tar

In every case so far, judges have ruled that the lawmakers couldn’t ignore their subpoenas but that prosecutors and jurors would be limited in the types of questions they could ask.

The Republicans who posed as Georgia’s duly elected presidential electors were also directed to testify.

But the public fighting, especially to secure the testimony of seven Trump allies who live outside Georgia, has forced the DA’s office to share previously unknown details about the contours of its investigation. It’s also opened Willis and her deputies up to new lines of criticism.

Credit: arvin.temkar@ajc.com

Credit: arvin.temkar@ajc.com

Some of the harshest came from attorneys representing nearly a dozen of the GOP electors. They laid into Willis for disclosing too much about the investigation to the media, including acknowledging in a public court filing that the electors were being considered targets of the investigation. Meanwhile, state Sen. Burt Jones, the Republican nominee for lieutenant governor, successfully argued that Willis and her office should be disqualified from his portion of the probe because she had held a fundraiser for his Democratic opponent.

McBurney called the optics of Willis’ work for Jones opponent “horrific,” and a “what-are-you-thinking moment.”

Another test of Willis’ mettle may be on the horizon.

Bill White, the face of the all-but-stalled Buckhead City effort, said critics of the DA — whom he declined to name — are looking to set up an organization within the next 30 days that will drive a recall campaign.

White said he is not running the recall effort, which was first reported by Yahoo News, but that he’ll help it raise money outside of his Buckhead City duties.

A recall is considered a political long shot given Fulton’s deep blue bent and the very high bar for getting such initiatives on the ballot. But proponents hope it will hurt the investigation’s credibility and refocus the DA’s office on issues like crime.

‘Par for the course’

Willis hasn’t commented on the recall chatter. She previously said she was expecting many witnesses to fight their subpoenas, calling it “par for the course.”

Her office declined to comment for this story. But recent court filings and appearances by her staff indicate she isn’t pulling back.

Credit: Rebecca Wright for the Atlanta J

Credit: Rebecca Wright for the Atlanta J

Prosecutors have vehemently fought efforts to quash subpoenas, and they ceded no ground to Giuliani as he sought to delay or change the format of his testimony. Willis previously reserved the right to summon former officials from the Trump White House such as Chief of Staff Mark Meadows, or even the ex-president himself.

Her work, however, is expected to get more challenging the closer she gets to Trump because of potential claims of executive privilege and presidential immunity.

Despite that, Redmon said there could be a benefit to bringing the former president — or any targets of the investigation — in for questioning.

“Even if there’s someone you’re ultimately going to charge, you want to remove the argument that ‘I had a perfectly reasonable explanation if you had just asked for it,’” she said.

Evans predicted the recent legal battles, especially with the alternate electors, will cause the investigation to lose credibility, particularly among Republicans.

Atlanta attorney Andrew Fleischman believes that even if people begin to view the investigation as political, that may not hurt Willis in a county in which more than 72% of the vote went for Joe Biden two years ago.

“She has a national spotlight on her on this case, something she could almost never otherwise get,” Fleischman said. “She’ll be in history books because of this. How do you turn that down as a political figure?”