ATLANTA (AP) — As a Georgia investigation into possible criminal interference in the 2020 election heats up, prosecutors, allies and advisers to former President Donald Trump are trying to force him to come to Atlanta to testify before a special grand jury.
Fulton County District Attorney Fani Willis began the criminal investigation early last year, and the special jury was installed at her request in May. In a letter asking the County Superior Court chief justice to set up a special grand jury, she mentioned the need to be able to issue subpoenas for witnesses who would otherwise be unwilling to speak to her team.
From the archive (February 2021): Georgia prosecutors are launching a criminal investigation into Trump’s attempt to overturn the election
For Witnesses living outside of Georgia, the process of obtaining a subpoena is more complicated. Willis last week began this process for seven Trump associates, including former New York Mayor Rudy Giuliani and US Senator Lindsey Graham, a Republican from South Carolina who went from being a harsh critic to a prime enemy during the Trump presidency ultra loyalists.
Why is it more complicated to subpoena a foreign witness? State courts generally have no subpoena authority beyond their state lines. For this reason, prosecutors have to follow a multi-stage process in order to be able to compel a foreign witness to testify.
What must a prosecutor do? The prosecutor files a motion with the court explaining why the person’s testimony is “essential and necessary” to the grand jury’s investigation. Because the prosecutor must justify forcing an individual to travel to another state, the petition can provide valuable insight into the otherwise secretive workings of the grand jury’s special investigation.
For example, in several of the petitions filed as part of the investigation last week, Willis alleged that there was “a multi-state, coordinated plan by the Trump campaign to influence the results of the November 2020 election in Georgia and elsewhere.”
In each petition, she outlined specific actions of the person whose testimony she sought to compel and identified the person’s “unique knowledge” that necessitated their testimony.
What is the role of the judges? If the judge in the jurisdiction in which the prosecutor is serving agrees that testimony is required, the judge issues a “Certificate of Testimony”. This document should be filed with the petition in a court in the county where the witness resides in another state.
Fulton County Superior Court Judge Robert McBurney, who oversees the Special Grand Jury, signed Willis’ petitions last week. The next step is for the Fulton County District Attorney’s Office to work with local prosecutors in each state where witnesses reside to file the documents with the local courts and serve a notice to the person whose testimony is being sought.
This notice prompts the person to appear before a judge in their home state. If the person intends to resist the subpoena, the judge will schedule a hearing to determine whether a subpoena requiring that person to travel to Atlanta to testify before the special jury is appropriate. The witness is entitled to be represented by a lawyer at the hearing.
Fulton County prosecutors may travel to be present at the hearing to assist local prosecutors and possibly testify as to why the person’s testimony is required.
At the hearing, the judge will determine whether the person is, in fact, an “essential and necessary” witness and whether the journey to testify will cause the person undue hardship. If the judge agrees with the prosecutor, the judge would direct the person to go to Atlanta.
Can a witness fight a subpoena? Yes. The person can file an appeal in the home state, said Pete Skandalakis, executive director of the Georgia State Attorneys’ Council. But it’s more likely the person in Georgia would petition to try not to testify, he said.
It would then be up to McBurney to decide whether the person must testify and whether there should be limits to the questions prosecutors and grand jurors can ask.
A person who fails to appear when asked to testify may be subject to contempt in court and a penalty that may include a fine or imprisonment.
In a Tuesday court filing, Graham’s attorneys attempted to quash his subpoena, arguing that he had “sovereign immunity” from state trials related to his work as a senator, as well as constitutional protection, because “the testimony sought relates to matters within the legislature.” “
See: Sen. Lindsey Graham, who is trying to get the subpoena overturned, denies interfering in the election
If a person is called as a witness, does that mean that person will not be charged? no Unlike a regular grand jury, a special grand jury can subpoena a target for an investigation. But the special grand jury can’t bring an indictment. When the investigation is complete, the special grand jury will make recommendations. Willis is not bound by the special grand jury’s recommendations, and it is ultimately her decision whether to pursue an indictment from a regular grand jury.
Anyone subpoenaed can invoke Fifth Amendment rights against self-incrimination when questioned before a special grand jury, Skandalakis said.
Could Trump be subpoenaed? Yes. Willis could use this procedure to try to force a testimony from the former president. Given his record of legal cases to date, this could result in a protracted battle in court.
See (January 2021): Trump on tape urges Georgia official to “find” more votes.
Likewise: Trump’s Georgia call: Here’s the full transcript
What charges are prosecutors considering? In a letter Willis sent to senior state officials last year, she said she was investigating “possible violations of Georgia law, which prohibits solicitation of voter fraud, giving false information to state and local government agencies, conspiracy, extortion and violation of the oath of office.” and any involvement in violence or threats related to the administration of elections.”
Among things Willis said, her team is investigating a Jan. 2, 2021 phone call in which Trump urged Georgia Secretary of State Brad Raffensperger to “find” enough votes to make up for his loss; calls from Graham to Raffensperger; and false allegations of voter fraud made by Giuliani and others during the December 2020 Legislative Committee hearings at the State Capitol.
Continue reading: Select Committee on Jan. 6 asks Georgia Republican Barry Loudermilk for information on the tour before the Capitol attack