Members of the General Assembly are tussling with the Fulton County District Attorney’s office over subpoenas served as part of the ongoing criminal investigation into the actions of former President Donald Trump and his allies following Georgia’s 2020 elections.
A group of current and former lawmakers, which includes Lt. Gov. Geoff Duncan and former Sen. William Ligon of Brunswick, both Republicans, filed a motion in Fulton County Superior Court earlier this week challenging subpoenas requiring their testimony before a special grand jury next month.
They are asking Judge Robert McBurney, who is overseeing the special-purpose grand jury, to set down guidelines to which prosecutors must adhere if lawmakers testify.
The motion was filed by Atlanta attorneys Don Samuel and Amanda Clark Palmer, who have been retained as special assistant legislative counsels for the General Assembly. They argue that the state Constitution gives lawmakers immunity from being questioned about their legislative activities.
“The relief we are seeking is to limit the types of questions a legislator can be asked in accordance with the Georgia Constitution,” Samuel said Tuesday. “It’s important the different branches of government be allowed to operate without the undue influence of another branch.”
McBurney has scheduled a hearing on the matter for Friday.
The special grand jury has been hearing testimony all month from a parade of witnesses, some of whom had direct contact with Trump and his associates as they sought to overturn Joe Biden’s win in Georgia.
Among those who have testified are Secretary of State Brad Raffensperger, several of his deputies and Attorney General Chris Carr. Gov. Brian Kemp, who rebuffed pressure from Trump to call a special session of the state legislature to reverse the election results, is slated to give a video statement to the special grand jury next month.
Samuel previously said he’s representing a half-dozen lawmakers who have requested his help, though the motion only names Duncan and Ligon, who retired in late 2020. At least three other legislators, all Democrats, have already testified before the special grand jury.
In the weeks following the 2020 elections, Ligon did more than most elected officials in Georgia to aid Trump’s efforts to overturn election results.
During his final weeks in office, he organized a special Senate committee to examine election fraud claims. During one of the panel’s hearings, Ligon turned the floor over to Rudy Giuliani for more than six hours, allowing Trump’s personal lawyer to spread falsehoods about the election that were later debunked by state authorities. The special grand jury has in recent weeks zeroed in on Giuliani’s testimony, the AJC previously reported.
Ligon later issued an election fraud report that echoed many allegations and conspiracy theories. He, along with other GOP colleagues, called for a special session of the legislature. He sided with Texas in its lawsuit that sought to invalidate the election results in Georgia and other states and signed a letter urging Vice President Mike Pence to delay the tally of Electoral College votes.”
Ligon even traveled to Washington to assist Republicans as Congress tallied Electoral College votes on Jan. 6.
Ligon did not respond to requests for comment this week, though he previously told the AJC that he has no regrets about his actions following the election, and he does not believe he helped pave the way for the attack on the U.S. Capitol.
Duncan wasn’t involved in the “stop the steal” movement — he’s urged the party to move past Trump and stop relitigating the 2020 elections — though prosecutors could be interested in talking to him given his constitutional role as president of the state Senate.
In an interview with the AJC on Monday, Duncan took a swipe at the legislators who aided Trump’s cause.
”Think about the shallow reasons why they did that,” he said. “There was nothing in that for them except maybe an invitation to Mar-a-Lago or perhaps a future endorsement.”
Speech and debate
In the motion, Samuel and Palmer point to a provision in the state Constitution that stipulates that no member of the legislature or their staff “shall be liable to answer in any other place for anything spoken in either house or in any committee meeting of either house.”
Among protected activities, the attorneys argue, are: debates on the House and Senate floor and in committee meetings; conversations with staff and other members of the General Assembly about legislative matters; and “all other activities that are part of the legislative responsibility of the legislator and staff.”
“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,” Samuel and Palmer wrote. “Legislators must be permitted to talk to one another — perhaps even across the proverbial ‘aisle’ — without concern that efforts to accommodate, or compromise, will be exposed to the public. Bad ideas need to be discussed and rejected; good ideas should be promoted.”
Samuel and Palmer also want McBurney to compel the DA’s office to divulge the scope of their intended questions of witnesses in advance. They requested assurances that lawmakers can pause any questioning before the special grand jury to consult with their lawyers as often as necessary, since attorneys are not allowed inside grand jury rooms as their clients are being questioned.
At the same time, Samuel and Palmer acknowledged that “there are questions the district attorney may pose to (a legislator) that are entirely unrelated to his legislative duties.”
The Georgia Constitution has, dating back to about the time of the state’s founding, included a provision very similar to the “speech and debate clause” in the U.S. Constitution.
That clause “prohibits courts from compelling a member of the Legislature to answer questions that relate to their core legislative activities,” said Atlanta attorney Keith Blackwell, a former justice on the state Supreme Court. “The real rub is defining exactly what is a core legislative function.”
The clearest examples are a lawmaker’s votes and speeches made on the House or Senate floor and votes and remarks during committee meeting. The privilege has also been extended to negotiations between lawmakers over legislation even if those discussions are not on the floor or in a committee room.
What is not protected are political activities unrelated to the lawmaking process, Blackwell said.
Because the motion raised by Samuel and Palmer raises important issues, it might be a good idea for McBurney to either hear objections to certain questions raised by prosecutors or set a framework for how the questioning proceeds, Blackwell said.
“Whenever you have a scenario where a significant portion of the questions that could be put to a witness are privileged and out of bounds, then it’s always helpful to the parties and the lawyers for the court to lay down some ground rules for the examination,” he said.
Anthony Michael Kreis, a Georgia State University law professor specializing in constitutional law, said that the state’s legislative immunity clause is relatively untested in court. McBurney, the Fulton judge, may need to spend time parsing through immunity claims legislators have for individual questions that prosecutors might have, he said.
“The members of the General Assembly may well have to provide some kind of justification for each one of those things as to why they should be immune from answering those questions before the grand jury,” Kreis said.
Even then, Kreis said, any decision by McBurney may end up getting appealed all the way up to the Georgia Supreme Court, dragging out proceedings.
Kreis also drew a line between Duncan and other state legislators. He said the lieutenant governor may have a harder time citing immunity under the state Constitution given that he’s not technically a member of the Legislature.