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ATLANTA — A judge ruled that Fulton County District Attorney Fani Willis and her staff cannot challenge Georgia’s Republican pick for lieutenant governor over his role in contesting the 2020 presidential election because Willis is running a fundraiser for the candidate’s Democratic rival hosted.
In a ruling Monday, Fulton Superior Court Judge Robert McBurney argued that Willis’s decision to support Charlie Bailey as lieutenant governor during his runoff in the Democratic primary had “a clear — and actual and untenable — conflict” with her investigation of a possible voter fraud creates State Senator Burt Jones, the GOP nominee for office.
“This decision – to which the prosecutor was entitled as an elected official – has consequences,” the judge wrote.
In late June, Willis sent letters to 16 Georgia Republicans informing them that they were potential “targets” of a criminal investigation into their participation in a campaign plan to create a fake list of Georgia voters to support Donald Trump to support the 2020 presidential election — an election in which Georgia voters chose Democrat Joe Biden.
Attorneys for 11 of those 16 Republicans said in court filings that their clients received the “target” letters after they were subpoenaed to testify in connection with the investigation — a somewhat unusual juxtaposition that may make them unlikely in their records will provide much information testimony.
Jones, who was among the Republicans leading the voter effort, subsequently sought to have Willis excluded from the criminal investigation, citing her fundraiser with Bailey.
The Prosecuting Attorney’s Council of Georgia, which assists local prosecutors in the state, will select another prosecutor’s office to oversee aspects of the Jones investigation.
McBurney noted that the fundraiser Willis hosted was intended to support Bailey in a runoff campaign against his Democratic compatriot Kwanza Hall, an accolade the judge deemed “important.”
“But more importantly — and more damagingly — to the integrity of the grand jury investigation is that the die has already been cast on the other side of the political divide: Whoever wins the Hailey Hall runoff will be running against Senator Jones,” argued the judge.
The decision is a major and unexpected victory for Jones’ legal team. McBurney denied a similar motion to vacate the district attorney’s subpoenas filed by attorneys representing 11 of the other bogus voters.
“Many legal observers did not predict this outcome because Fani Willis had no actual conflict of interest as a result of the fundraiser, although she certainly did appear to have one,” said Anthony Kreis, a professor of constitutional law at Georgia State University.
When asked about the decision to subpoena witnesses and then inform them that they are potential targets of the investigation, Kreis said it “was not routine practice for prosecutors here. But the process of this investigation is anything but routine.”
“On the one hand you can see how sensitive the office is to allegations that they have insulted political opponents. So there’s a good claim that they issued the letters to cover themselves against anyone who claims they were later denied procedural guarantees,” Kreis said. “On the other hand, a cynical eye can understand how there is a publicity boon from the news cycle that the letters have generated.”
Over the course of more than a year, Willis’ investigation into possible criminal voter fraud appears to have broadened from a narrow focus on Trump’s alleged pressure on state officials to a broader investigation involving fake voters and potentially false statements by Trump to state lawmakers loyalists .
Willis launched the investigation after a January 2021 Washington Post report that Trump had pressured Georgia’s Secretary of State Brad Raffensperger (R) to “find” more than 11,000 votes to make up for his defeat in the state.
Willis endorsed Bailey as lieutenant governor that same month, more than a year before the Democratic primary. In the weeks between the May 24 primary and the June 21 lieutenant governor runoff, Willis announced the fundraiser for Bailey at the Westview Corner Grocery in southwest Atlanta.
About 100 people attended the event, which included a live band and a meet-and-greet for Willis, Bailey and Bailey’s wife, according to shopkeeper Matt Garbett, who supported Bailey in the primary after the Democratic nominee campaigned for him T-shirt had promised.
“It all started with a joke and I wanted free t-shirts,” Garbett said.
In May, a special grand jury was set up to seek testimony from a wider range of witnesses in Willis’s investigation. Unlike a traditional grand jury, the special grand jury lasts for one year and focuses on a single issue. It will issue a report of its findings, but it cannot enter indictments like a traditional grand jury.
Large jurors have heard from Raffensperger and his aides, Georgia Attorney General Chris Carr (R), and several state legislators, local poll workers and legal experts. On Monday, Gov. Brian Kemp (R) filed an affidavit with prosecutors about efforts by Trump and his allies in Georgia to overturn the election results there.
A Georgia judge also approved prosecutor’s subpoenas from seven close Trump allies, including his former attorney 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 (RS.C.), for their possible role in pressuring officials to change the to delay or disrupt Georgia’s electoral administration in favor of Trump.
Graham, who said he called Raffensperger twice in December 2020 about Georgia’s vote-by-mail policy, has claimed he is working as part of his job duties and that provisions in the constitution protect him from testifying. Hice, a close Trump ally who has openly questioned the state’s voting system after the 2020 election, has fought the subpoena, arguing that the case should be taken in federal court.
