At least two Republicans lawmakers will be required to testify before the Fulton County special grand jury investigating former President Donald Trump and Georgia’s 2020 elections, a superior court judge indicated Friday.
But the judge suggested that prosecutors will be significantly limited in what they can ask.
Fulton Superior Court Judge Robert McBurney did not come to a final decision about what exactly the District Attorney’s office can ask Lt. Gov. Geoff Duncan, former state Sen. William Ligon of Brunswick and several other unnamed state legislators. But at a 90-minute hearing Friday, McBurney said anything related to their conversations with other legislators or motivations are off-limits.
“I’m not quashing any of these subpoenas, but I want to create a framework,” said McBurney, who is expected to finalize guidelines for questioning in the days ahead.
The hearing was called after two lawyers retained by the state legislature filed a motion challenging the scope of the District Attorney’s subpoenas for Duncan and Ligon.
Even though Friday’s hearing was relatively procedural it provided one of the clearest windows into DA Fani Willis’s interests as part of the investigation, which was launched in February 2021.
All of the special grand jury proceedings are secret, and Willis has made few public remarks since selecting the jury on May 2. She was present in the courtroom Friday and advised her two lead prosecutors, Donald Wakeford and Nathan Wade, but let them argue for her office. Still, she shook her head in disapproval when a rival attorney made a counterpoint.
The 23-member jury is tasked with writing a report suggesting to Willis whether to file charges.
The legislators’ attorneys, Don Samuel and Amanda Clark Palmer, argued the state Constitution grants members of the General Assembly immunity from being questioned about their legislative activities.
Although only Duncan and Ligon are named in this filing, Samuel said many other legislators who have been subpoenaed are eager to learn what they will be asked once McBurney sets the parameters.
“There are others that week who are going to want to know the answers to those questions,” Samuel said, “and their lawyers because they call me every hour.”
McBurney suggested that he sees no problem with prosecutors asking legislators to whom they spoke, but the rub comes when prosecutors want to ask legislators the next logical question: What did y’all talk about?
Samuel argued that enters the territory of looking into their motivations.
“Here we’re talking about something that’s enshrined in the constitution … that we are not going to interfere with the legislator doing its business, and it’s business includes talking to constituents and talking to experts,” Samuel said.
If disallowed from asking legislators about the conversations, prosecutors will be left to subpoena the other party in the conversation who seemingly wouldn’t be protected by legislative immunity. But that could lead to thorny issues and more logistics instead of just being able to question the legislator in front of them.
That’s because many of Trump’s allies who might have advised legislators, such as Rudy Giuliani, could fall under executive privilege or attorney-client privilege and live out of state, creating even more hurdles for prosecutors seeking to compel testimony.
Wakeford, representing the DA’s office, said prosecutors must address the content of conversations “when the actions contemplated here … suggested illegal, extrajudicial activities by the legislators.” Wakeford added: “Limitation would inhibit truthful communication.”
Lawmakers are allowed to be questioned under subpoena about other matters outside of that legislative sphere. Willis’ office believes actions that sought to upend certified election results are political activities and are thus fair game.
But the question is how much of the actions undertaken by legislators aligned with the “Stop the Steal” movement constituted legitimate official business or political activities, especially if some occurred through official legislative channels.
These are not short conversations. For example, Wade estimated that it would take about 4 hours to question Ligon.
The former senator was one of the General Assembly’s most vocal proponents of decertifying Georgia’s election results.
In his last months in office, he organized a special Senate committee to examine election fraud claims, invited Giuliani to testify and later authored a report that echoed many of the attorney’s conspiracy theories. That report urged the Legislature to convene in a special session and “act to determine the proper Electors to be certified to the Electoral College.”
Duncan has spoken against the “Stop the Steal” movement and urged his party to move past Trump.
McBurney said he would come up with guidelines for legislator questioning before July 12, which is when Duncan is slated to testify.
