“ATLANTA — A judge ruled that Fulton County District Attorney Fani Willis and her staff cannot question Georgia’s Republican pick for lieutenant governor over his role in contesting the 2020 presidential election because Willis hosted a fundraiser for the nominee’s Democratic rival.
In a ruling issued Monday, Fulton Superior Court Judge Robert McBurney reasoned that Willis’s decision to endorse Charlie Bailey during his runoff in the Democratic primary for lieutenant governor “creates a plain — and actual and untenable — conflict” with her investigation into potential election fraud by state Sen. Burt Jones, the GOP nominee for the office.
“This choice — which the District attorney was within her rights as an elected official to make — has consequences,” the judge wrote.
In late June, Willis sent letters to 16 Georgia Republicans notifying them that they were potential “targets” of a criminal investigation over their participation in a campaign scheme to create a fake slate of electors from Georgia to support Donald Trump in the 2020 presidential election — an election in which Georgia voters picked Democrat Joe Biden.
Lawyers for 11 of those 16 Republicans said in court filings that their clients received the “target” letters after they had been subpoenaed to testify in connection with the inquiry — a somewhat unusual juxtaposition that could make it unlikely that they will provide much information in their testimony.
Jones, who was among the Republicans who led the elector effort, subsequently sought to disqualify Willis from the criminal probe, citing her fundraiser with Bailey.
The Prosecuting Attorney’s Council of Georgia, which supports local prosecutors in the state, will select a different district attorney’s office to oversee aspects of the investigation relating to Jones.
McBurney noted that the fundraiser Willis hosted was to support Bailey in a runoff contest against fellow Democrat Kwanza Hall, a distinction the judge deemed “important.”
“But more relevant — and harmful — to the integrity of the grand jury investigation is that the die was already cast on the other side of the political divide: whoever won the Hailey-Hall runoff would face Senator Jones,” the judge reasoned.
The decision is a major and unexpected win for Jones’s legal team. McBurney denied a similar motion to quash the district attorney’s subpoenas filed by lawyers representing 11 of the other fake electors.
“Many legal observers didn’t predict this outcome because Fani Willis didn’t have an actual conflict of interest as a result of the fundraiser though she certainly created the appearance of one,” said Anthony Kreis, a constitutional law professor at Georgia State University.
Asked about the decision to subpoena witnesses and then inform them they were potential targets of the investigation, Kreis said that “wasn’t a routine practice for DAs here. But there’s also nothing routine about the process of this investigation.”
“On the one hand, you can see how the office is sensitive to allegations that they railroaded political opponents. So, there’s a good claim that they issued the letters to hedge against anyone saying they were denied procedural safeguards down the road,” Kreis said. “On the other hand, a cynical eye can understand how there is a publicity boon from the news cycle that the letters generated.”
Over the course of more than a year, Willis’s investigation into potential criminal election fraud appears to have widened, from a narrow focus on Trump’s alleged pressure on state officials to a broader inquiry involving the fake electors and potentially false testimony given to state lawmakers by Trump loyalists.
Willis launched the investigation after a January 2021 Washington Post reportthat Trump had pressured Georgia’s secretary of state, Brad Raffensperger (R), to “find” more than 11,000 votes to make up his margin of defeat in the state.
Willis endorsed Bailey for lieutenant governor that same month, more than a year before the Democratic primary. In the weeks between the May 24 primary election and the June 21 runoff for lieutenant governor, Willis announced the fundraiser for Bailey at Westview Corner Grocery in southwest Atlanta.
About 100 people attended the event, which featured a live band and meet-and-greet for Willis, Bailey and Bailey’s wife, according to store owner Matt Garbett, who endorsed Bailey in the primary after the Democratic nominee promised him a campaign T-shirt.
“All this started with a joke and me wanting free T-shirts,” Garbett said.
In May, a special grand jury was seated to obtain testimony from a broader array of witnesses in Willis’s investigation. Unlike a traditional grand jury, the special grand jury is seated for a year and is focused on a single topic. It will produce a report on its findings, but it cannot issue indictments like a traditional grand jury.
Grand jurors have heard from Raffensperger and his aides, Georgia Attorney General Chris Carr (R), and several state lawmakers, local election workers and legal experts. On Monday, Gov. Brian Kemp (R) submitted a sworn written statement to prosecutors about the efforts Trump and his allies took in Georgia to overturn the election results there.
A Georgia judge also approved prosecutors’ subpoenas of seven close Trump allies, including his former lawyer, Rudy Giuliani, and members of his campaign’s legal team, including Kenneth Chesebro, John Eastman and Jenna Ellis.
Grand jurors have also subpoenaed testimony from two U.S. lawmakers, Rep. Jody Hice (R-Ga.) and Sen. Lindsey O. Graham (R-S.C.), for their potential roles in pressuring officials to delay or interfere with Georgia’s election administration in favor of Trump.
Graham, who has said he made two calls to Raffensperger in December 2020 about Georgia’s absentee ballot policies, has asserted that he was working within his professional duties and that provisions in the Constitution shield him from testifying. Hice, a close Trump ally who openly questioned the state’s election system after the 2020 election, has fought the subpoena, arguing that the case should be moved to federal court.“