ATLANTA — The Fulton County judge overseeing the special grand jury that’s examining whether there was any criminal interference in Georgia’s 2020 elections said Thursday that 11 “alternate” Republican electors who were recently deemed targets of the probe would need to honor subpoenas for their testimony.
Superior Court Judge Robert McBurney indicated that those witnesses could still assert their Fifth Amendment rights not to incriminate themselves, but that they couldn’t skip appearances before the grand jury beginning next week.
But McBurney did not indicate during an afternoon hearing about how he would rule on one of the biggest questions laid before him: whether Fulton District Attorney Fani Willis and her office should be pulled from at least one portion of the investigation because the DA held a fundraiser for the political opponent of one of probe’s targets, Republican lieutenant governor nominee Burt Jones.
The judge said the optics of that June fundraiser, for Democrat Charlie Bailey, were “horrific” and could undermine public confidence in the investigation. But he pressed Jones’ attorney about whether there was enough of an actual conflict to justify disqualifying Willis and her office, at least from the portions of the case involving Jones, who also served as a Trump elector.
“I don’t know that it’s an actual conflict, but… it’s a ‘what are you thinking’ moment,” McBurney said. “If we’re trying to maintain confidence that this investigation is pursuing facts in a non-partisan sense… That strikes me as problematic.”
McBurney said he was particularly concerned that the fundraiser was advertised on social media using Willis’ official title.
“That’s the concern I’m working through, is that it’s not a lower case ‘a’ appearance. It’s like a capital ‘a’ with flashy lights fundraiser with the district attorney for the political opponent of someone I’ve named a target of my investigation where I’m the legal adviser to the grand jury and I’m on national media almost nightly talking about this investigation,” McBurney said. “That’s problematic.”
An attorney for the DA’s office noted that the fundraiser was held while Bailey was competing in the Democratic runoff — and it was still unclear which candidate would face off against Jones in the fall. And the event was held weeks before a letter was sent notifying Jones he is a target.
More importantly, said Anna Green Cross, who represented the Fulton DA’s office, Willis hasn’t treated Jones any differently than any of the other electors in the investigation.
McBurney said he plans to issue a written order soon.
There are two main grounds for disqualifying a prosecutor from a case, according to the Prosecuting Attorney’s Council of Georgia: “forensic misconduct” or — more pertinent in this situation — a conflict of interest.
In 2005, when the Georgia Supreme Court upheld the bribery conviction of former state Corrections Commissioner Bobby Whitworth, the state's highest court said a conflict exists when “the prosecutor has acquired a personal interest or stake in the defendant’s conviction.” Also, an “actual conflict” must be involved and be more than a “theoretical or speculative conflict.”
McBurney said he would ensure that the final recommendations of the grand jury — whether or not the DA should pursue charges against anyone in the investigation — would not be released close to the election.
The wide-ranging hearing, which stretched for two hours, addressed two separate motions filed by targets of the investigation. But it also homed in on issues like alleged media leaks and the ethics training the DA’s office receives.
Lawyers for the 11 electors, including Georgia GOP Chairman David Shafer, wanted to quash subpoenas amid fears that anything they may testify before the grand jury — including confirming their names — could later be used against them because they are targets of the investigation. They also warned about bringing additional media attention toward their clients by forcing them to testify because most have already faced a barrage of threats.
Attorneys for Jones, meanwhile, zoomed in on Willis’ fundraiser for Bailey, which they said netted the Democrat $32,000.
They urged McBurney to rule that the state Attorney General’s office appoint another DA’s office who could question Jones.
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