A judge is weighing whether a Georgia state Senate committee has the right to subpoena testimony and documents from Fulton County District Attorney Fani Willis as it looks into whether she has engaged in misconduct during her prosecution of President-elect Donald Trump.
The Republican-led committee sent subpoenas to Willis in August seeking to compel her to testify at its September meeting and to produce scores of documents. The committee was formed earlier this year to examine allegations of “various forms of misconduct” by Willis, an elected Democrat, during her prosecution of Trump and others over their efforts to overturn the former president’s 2020 election loss in Georgia.
That prosecution of the president-elect is currently on hold pending a pretrial appeal of an order allowing Willis to remain on the case despite what defense attorneys say is a conflict of interest. Even if the appeals court rules in Willis' favor, it seems unlikely she will be able to continue the case against Trump while he's in office.
Willis' attorney, former Democratic Gov. Roy Barnes, told Fulton County Superior Court Judge Shukura Ingram during a hearing Tuesday that although the Georgia General Assembly has subpoena power, that power is not automatically conferred on a single legislative chamber or its committees. Even if the committee did have such power, he argued, the subpoenas in question are overly broad and not related to a legitimate legislative need.
Barnes said the focus on Willis and her investigation into Trump shows that the committee was politically motivated and not a legitimate inquiry into the practices of district attorneys' offices: “What they were trying to do is chill the prosecution of Donald Trump and find out what they had.”
Josh Belinfante, a lawyer representing the lawmakers, said there is nothing in the Georgia Constitution that prohibits the Senate from issuing a subpoena. The duly formed interim committee is looking into whether new legislation is needed to regulate the practices of district attorneys' offices in the state, he argued.
“They are investigating and making an inquiry into these allegations that may show that existing state laws, including those establishing the processes for selecting, hiring and compensating special assistant district attorneys, are inadequate,” Belinfante said.
The resolution creating the committee focused in particular on Willis’ hiring of special prosecutor Nathan Wade, with whom she had a romantic relationship, to lead the prosecution against Trump and others. It says the relationship amounted to a “clear conflict of interest and a fraud upon the taxpayers” of the county and state.
One of the committee’s subpoenas orders Wills to produce documents related to Wade, including documents related to his hiring and payment, documents related to money or items of value that Wade and Willis may have exchanged, text messages and emails between the two, and their phone records.
The committee also requested any documents her office sent in response to requests from the U.S. House, as well as communications Willis and her office had with the White House, the U.S. Justice Department and the House relating to the 2020 presidential election. And they asked for documents related to federal grant money Willis’ office has received.
Before the deadlines in the subpoenas, Willis challenged them in court. Willis’ challenge was pending in mid-September when she skipped a hearing during which the committee members had hoped to question her.
In October, the committee asked Ingram to require Willis to comply with the subpoenas. The committee’s lawyers wrote in a court filing that Willis’ failure to do so had delayed its ability to finish its inquiry and to provide recommendations for any legislation or changes in appropriations that might result.
Barnes also argued that once the regular legislative session has adjourned, which happened in March this year, legislative committees can meet to study issues and come up with recommendations but do not have the power to compel someone to appear or produce documents. Belinfante rejected that, saying the state Constitution expressly permits the creation of interim committees and allows them to make their rules.
Even if these subpoenas were validly issued, Barnes argued, they ask for too much, including private and personal information that is not a legitimate target of a legislative subpoena.
Belinfante said the lawmakers are simply trying to do their jobs. He asked that Willis be ordered to appear before the committee in early January. He also asked that she be ordered to provide the requested documents and explain what privilege justifies any that are excluded.
With a glaring lack of state case law on the issue of the General Assembly's subpoena power, that's one issue Ingram will have to address. She said she will consider the arguments and release her order as soon as she can.
Willis and Wade have acknowledged that they had a relationship but have said it began after he was hired and ended before the indictment against Trump was filed.
Trump and other defendants argued that the relationship created a conflict of interest that should disqualify Willis and her office from continuing with her prosecution of the case. Fulton County Superior Court Judge Scott McAfee ruled in March that Willis’ actions showed a “tremendous lapse in judgment,” but he did not find a conflict of interest that would disqualify Willis. He said she could continue her prosecution as long as Wade stepped aside, which he did.
An appeal of that ruling to the Georgia Court of Appeals remains pending but must be decided by March.
