Kendall County Judge Robert Pilmer on Wednesday denied the Lee’s summons, technically known as a certificate of material witness. He said the Fulton County District Attorney’s office, which is advising the grand jury, did not provide enough evidence to prove Lee was a “necessary” and “material” witness to the investigation and thus compel him to travel to Atlanta.
“The court finds that Stephen Cliffgard Lee is not a material witness based on the facts in the judge’s certificate,” Pilmer wrote in his order, referring to the certificate of material witness signed by Fulton Superior Court Judge Robert McBurney on Oct. 7.
Pilmer’s order gives Fulton authorities 30 days to file an amended certificate or provide additional information.
“If they can provide more details to the judge, he will consider it,” said Kendall County State’s Attorney Eric Weis, whose office represented the Fulton DA’s in the proceedings.
A spokesman for the Fulton DA’s office said prosecutors will refile a petition with additional evidence. McBurney, who oversees the grand jury investigation, would need to greenlight the document before it could be sent back to Kendall County, where Lee lives.
David Shestokas, Lee’s attorney, said the certificate McBurney signed is faulty because it heavily relies on representations made by the DA’s office.
“The representations of a lawyer in a courtroom are not evidence. They are argument,” he said. “Evidence is sworn testimony, affidavits executed under penalty of perjury… McBurney didn’t send us a shred of evidence.”
Shestokas added, “if Georgia wants (Lee) to do something, they have to properly comply with the law. What they sent here to Illinois was insufficient.”
Freeman and her daughter, Shaye Moss, became targets of vitriol and death threats for their work counting ballots at Atlanta’s State Farm Arena on election night. Then-President Donald Trump, his personal attorney Rudy Giuliani and others seized on surveillance footage that they said showed the women pulling out hidden ballots for Democrat Joe Biden from “suitcases.”
Federal and state authorities looked into the matter and quickly determined that Freeman and Moss did nothing wrong. The alleged suitcases were in actuality official ballot carriers holding legitimately-cast votes.
But that didn’t stop the harassment.
Trevian Kutti, a former publicist for Kanye West, knocked on Freeman’s door on Jan. 4, 2021, claiming to be a crisis manager sent by a “high-profile individual” and told Freeman to confess to committing election fraud or risk being arrested.
A certificate of material witness was issued for Kutti’s testimony by the grand jury. A certificate of material witness was also issued for former Black Voices for Trump Director Harrison Floyd, who also spoke with Freeman.
Lee spoke with Kutti that day and the following day, according to his certificate of material witness, and he allegedly asked Floyd to arrange the meeting with Freeman.
Police body cam footage also shows that Lee had personally visited Freeman’s Cobb County home several weeks earlier, on Dec. 15, 2020, which prompted Freeman to call the police several times. In the footage, Lee acknowledged he had knocked on Freeman’s door and offered to provide “pro bono service” to her, left and then returned.
Lee, Fulton prosecutors said, “possesses unique knowledge concerning communications between himself and other known and unknown individuals involved in the multi-state, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.” The DA’s office said Lee’s testimony was also “essential” because it was likely to reveal additional sources of information for the investigation.
The efforts to pressure Freeman have become a major interest of the investigation. Prosecutors have also focused on phone calls Trump and his allies placed to Georgia officials; tumult in the Atlanta U.S. attorney’s office; testimony Giuliani and other Trump allies gave to state legislators; the appointment of a slate of phony GOP electors; and the breach of elections data in Coffee County.
Most of the out-of-state witnesses who have fought their subpoenas have been forced to comply by judges. That includes top officials like U.S. Sen. Lindsey Graham, former House Speaker Newt Gingrich and former White House Chief of Staff Mark Meadows.
The only publicly known witness who was able to defeat her subpoena is Jacki Pick. The Dallas lawyer and podcast host won on a technicality: her testimony date had already passed and a judge ruled that she subsequently didn’t need to go to Atlanta. But, more significantly, Pick also convinced a majority of judges on the Court of Criminal Appeals that the Fulton special grand jury was “civil” and not “criminal” in nature because it can’t issue subpoenas, thus making its summons unenforceable under interstate subpoena rules.
Several other witnesses, including Gingrich and Meadows, have made similar arguments in court, though judges in their home states of Virginia and South Carolina rejected them. At least one other Texas witness has subsequently ignored their testimony date in Atlanta, presumptively because of the Pick ruling.
Staff writer Bill Rankin contributed to this article.