Next big decision for Fulton DA: whether to subpoena Trump

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

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

Fulton County District Attorney Fani Willis’ probe of Georgia’s 2020 elections has already reached far into former President Donald Trump’s inner circle.

The special purpose grand jury aiding her investigation has demanded the testimony of the Republican’s onetime personal lawyer, his last White House chief of staff and one of his top Senate allies.

But one of the biggest unanswered questions is whether Willis will seek to subpoena Trump himself, a man who’s widely assumed to be a major target of her inquiry into potential criminal interference in the state’s most recent presidential contest.

The veteran prosecutor hasn’t ruled it out.

When asked if she would try to compel testimony from Trump during an interview this spring, Willis did not reject the possibility.

“It is foreseeable that I would subpoena the target of this investigation,” she said, before quickly correcting herself by saying “a target” of the probe, not Trump specifically.

Legal experts expect Willis to decide soon, especially since Trump is widely expected to announce a third presidential bid, potentially before the midterms.

Trump would not be the first president to be subpoenaed — Thomas Jefferson, Richard Nixon and Bill Clinton were all directed to provide evidence or testimony for various cases. But no former commander-in-chief has ever been charged with a crime.

While the special grand jury is investigative in nature and cannot issue indictments, legal experts are divided on whether it’s a smart move to subpoena Trump.

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Willis has said she hoped to conclude the special grand jury’s work by the end of the year.

“What effect would asking ... or subpoenaing him to testify have on that timetable if it turned into an extended court battle?” asked Norm Eisen, a lawyer who co-authored a Brookings Institution report analyzing the case.

The former president is a well-known legal brawler, and he could appeal to the U.S. Supreme Court if ordered to appear before the grand jury. That could drag out proceedings for months.

There’s also a real question of whether calling in Trump would be helpful to the investigation.

When Trump sat for a deposition with New York prosecutors this summer for a civil probe into the Trump Organization’s business practices, he reportedly pleaded the Fifth Amendment against self-incrimination 440 times. The only question he answered over the course of four hours was his name.

“I’m not quite sure what the point of calling him to the grand jury is,” said Don Samuel, a Atlanta defense attorney representing Georgia legislators in the Fulton investigation. “I assume his lawyer would tell him, ‘You should not be sitting there answering questions.’”

John Banzhaf, a professor of public interest law at George Washington University, said it would be “unthinkable” for Trump to not be called in to testify.

“If she doesn’t (subpoena him) and doesn’t indict him, there will be suspicion by many that she wimped out,” said Banzhaf, whose complaint against Trump helped lay the groundwork for the DA’s investigation. “If she doesn’t call him and does indict him, then he and his supporters will claim that he didn’t get his chance to tell his story, that she presented a very one-sided position to the grand jury.”

Credit: Mary Altaffer

Credit: Mary Altaffer

Under the microscope

Trump is at the center of almost every matter that jurors are investigating.

He spoke with Georgia Secretary of State Brad Raffensperger for more than an hour on Jan. 2, 2021, asking him to “find” enough votes to overturn President Joe Biden’s win in Georgia.

Trump also called other Georgia officials, including Gov. Brian Kemp and House Speaker David Ralston, in the weeks following the elections, pressing them to convene a special session of the Legislature.

Trump was directly involved in efforts to appoint “alternate” GOP electors in closely contested swing states, according to the Jan. 6 committee on Capitol Hill.

Fulton prosecutors subpoenaed and sent “target” letters to all 16 of the Republicans who tried to act as Trump electors in Georgia, and similarly informed Trump’s former personal lawyer, Rudy Giuliani, that he could be indicted. Fulton prosecutors were subsequently barred from investigating one of those electors, state Sen. Burt Jones, due to Willis’ political conflict of interest.

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Giuliani was allegedly at the center of the fake elector effort, as was attorney John Eastman, who declined to answer at least some questions before the grand jury last month, citing attorney-client privilege and the Fifth Amendment.

Additionally, prosecutors are looking into the staff shakeup in the U.S. Attorney’s office for the Northern District of Georgia after Trump expressed dissatisfaction with the top prosecutor, Byung J. “BJay” Pak, in January 2021.

Also drawing the interest of the DA’s office are a set of hearings at the state Capitol that featured testimony from Giuliani, Eastman and others, as well as a campaign to pressure a Fulton County poll worker to falsely admit to committing fraud. The worker had been singled out by Trump.

A spokesman for the Fulton DA’s office declined to comment for this story.

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Fifth Amendment implications

Eisen served as House Judiciary Committee counsel during Trump’s first impeachment battle and was at the center of a similar debate over whether to call him to testify.

The committee ultimately decided to do so, not only because members wanted evidence, “but out of our sense that it was the fair and right thing to do,” Eisen said. Trump refused.

“I think it is likely that she will attempt to subpoena him,” Eisen said of Willis. “It’s very tough when you’re deciding whether or not to prosecute a former president not to give him the opportunity to speak to the special grand jury.”

An alternative, he said, would be to simply invite Trump to testify without a subpoena.

Melissa Redmon, a former Fulton County prosecutor, said there is good reason why the DA’s office may want to interview Trump or any potential targets.

“You want to remove the argument that ‘I had a perfectly reasonable explanation if you had just asked for it,’” said Redmon, a University of Georgia law professor. “So you can kind of head that off by sending them a subpoena to testify before the grand jury.”

It could be brow-raising to grand jurors if Trump pleads the Fifth in response to most or all questions, according to Banzhaf.

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“If he does nothing more than states his name and takes the Fifth it would make him look bad I think in the eyes of many grand jurors, even though he obviously has a constitutionally protected right to do it and anybody with any sense would do it,” he said.

But that’s where the problem lies for Samuel.

In federal criminal cases, the government does not even allow a grand jury to see a witness invoke the Fifth Amendment, he said. But in Georgia, it’s permissible to subpoena witnesses to appear before the grand jury and make them invoke the Fifth Amendment. There’s no judge — or defense attorneys — in the grand jury room to tell the jury not to hold it against the witness.

“The question is why would the DA do it, and the cynical view would be that she’s going to do it just so he can plead the Fifth Amendment and the grand jurors can see that in court and draw an adverse inference,” said Samuel. “That’s a shame because that’s not the way the Fifth Amendment works.”