ATLANTA — As former President Donald J. Trump awaits a possible indictment in New York, his attorneys on Monday pushed back another criminal investigation into him in Georgia and filed a motion to vacate the final report of a special grand jury that checked whether Mr. Trump and some of his allies have interfered in the state’s 2020 election results.
The motion, filed in Atlanta, also seeks to suppress any evidence or testimony from the special grand jury inquest and requests that the office of Fulton County District Attorney Fani T. Willis be barred from the case.
Noting that “the whole world has been watching the progress of the Georgia investigation,” the motion described the grand jury’s proceedings as “confusing, flawed, and at times manifestly unconstitutional.”
Over the weekend, Mr Trump said in a social media post that he would be arrested Tuesday as part of an investigation by the Manhattan District Attorney into a hush money payment he made to a porn star, and called on his supporters to protest. A special counsel for the Justice Department is also investigating Mr Trump’s handling of classified documents he kept at his Florida home, his efforts to overturn the national election results and his conduct in connection with the Jan. 6 riots in the US Capitol .
In Georgia, Mr. Trump is seen to be at legal risk in two main areas: the calls he made in the weeks after the 2020 election to pressure state officials to overturn the results there, and his direct involvement in efforts to to compile an alternative electoral list Even after three counts, voters confirmed President Biden’s victory in the state. Experts said Ms Willis appears to be building a case that could target multiple defendants accused of conspiracy to voter fraud or racketeering-related charges.
The motion was filed Monday by Drew Findling, Jennifer Little and Marissa Goldberg, attorneys for Mr Trump on the Georgia matter.
The motion alleges, among other things, that Ms. Willis made numerous public statements that revealed bias; that the judge presiding over the case, Robert CI McBurney of Fulton County Superior Court, had made adverse statements; and that Georgia’s laws governing special grand juries are so vague as to be unconstitutional.
“The results of the investigations are not reliable and must therefore be suppressed in view of the violations of the constitution,” the motion says.
A spokesman for the prosecutor’s office declined to comment on Monday. However, several legal scholars who have followed the case closely expressed doubts that the motion would have much success. Clark D. Cunningham, a professor of law and ethics at Georgia State University, said the filing appears premature.
Mr Trump will have to wait to present the arguments presented in his trial until “when (and if) he will actually be charged,” Mr Cunningham wrote in an email, noting that even then it could be difficult to tell to cause the process to fail.
He noted that the state’s Supreme Court has described the dismissal of an indictment as an “extreme sanction sparingly used as a remedy for wrongful government conduct.”
Norman Eisen, an attorney who served as special counsel to the House Judiciary Committee during Mr Trump’s first impeachment, said the former president “has taken a spaghetti-on-the-wall approach to litigation for half a century.” He throws everything out to see what sticks. In this case, I don’t think it will stay.”
The 23 members of Fulton County’s special grand jury were sworn in last May and met behind closed doors for months to hear testimonies from 75 witnesses. They had no authority to bring charges; Rather, they prepared a report with recommendations for Ms. Willis’ office as to whether charges should be brought and against whom. Portions of the report were released in February, but key sections remain sealed, including those detailing who the jury thought should be charged and for what crimes.
In interviews late last month with a number of news outlets, jury chair Emily Kohrs did not provide specific details on the jury’s recommendations, although she discussed aspects of her work and told the New York Times that the jury had recommended more indictments than a dozen people. When asked if Mr Trump was among them, she didn’t answer directly, saying: “You won’t be shocked. It’s not witchcraft.”
In her round of interviews, Ms Kohrs, 30, said she tries to follow the rules set out by Judge McBurney carefully. He did not prohibit the jury from speaking, but told them not to discuss their private deliberations. Last week, five other judges discussed aspects of their work in an interview with The Atlanta Journal-Constitution.
In an interview after Ms. Kohrs spoke publicly, Mr. Trump’s lawyers argued that she had “poisoned” the case by disclosing a number of matters they said constituted “deliberations.” But Judge McBurney said in an interview in late February that the “deliberations” only extended to discussions that the jury had privately in the jury room. Other aspects of their work could be discussed publicly, he said, including anything that ended up in their final report.
Despite that latitude, the six jurors who spoke to news outlets declined to discuss who they had selected as the culprit. Any criminal charges would be brought by a regular grand jury.
In some of Ms. Kohrs’ television interviews, she sometimes used light and playful language, leading some critics to charge that the grand jury’s deliberations appeared to lack the seriousness that a criminal investigation of a former president deserves. Ms. Kohrs was even the subject of a Saturday Night Live skit.
However, some legal experts said they doubted Ms Kohrs’ comments would have a major impact on the Georgia case.
Trump’s attorneys argued in their motion that the jury’s public statements showed that their work was “impaired by undue influences,” noting that they were allowed to read news articles on the matter during their tenure. The motion also argued, based on some of Ms. Kohrs’ testimonies, that the jury had reached negative conclusions about witnesses who refused to answer questions, invoking their Fifth Amendment rights.
Judge McBurney pointed out in the February interview that special grand juries operate differently than trial juries, which are instructed to consider nothing other than the evidence presented in court.
“The prosecution conducting an inquiry before a special grand jury, any special grand jury, is free to present to that special grand jury anything she or he desires. Witnesses, documents — they might choose to play a film if that was any relevant,” he said.
Mr Trump’s attorneys also allege that Georgia’s laws on special grand juries are so vague as to jeopardize the right to due process.
In particular, the lawyers noted that Georgian law is unclear as to whether special grand juries can be criminal in nature or just civil in nature. They disputed Judge McBurney’s finding that the jury in that case was a criminal jury – a decision they said had “significant constitutional and procedural implications.”
This decision allowed the Special Grand Jury, among other things, to compel testimony from out-of-state witnesses, which would not have been permissible in a civil matter investigation. (A number of high-profile witnesses in the case tried, with varying degrees of success, to resist their subpoenas on the grounds that the special grand jury was a civilian entity.)
The motion also alleged that Judge McBurney’s decision last July to prevent Ms. Willis’ office from investigating Lieutenant Governor Burt Jones — a Republican and Trump ally who was then a state senator and for his current one Office candidate – should apply to all persons below investigation in the case. (Ms Willis headlined a fundraiser for Mr Jones’ Democratic rival in the lieutenant governor race.)
The attorneys requested that a judge other than Judge McBurney consider their application.
Mr Trump has frequently accused Ms Willis of conducting a “witch hunt” with the investigation and the motion bolstered the argument that she had shown bias towards Mr Trump. In a series of interviews with news outlets, the motion said, she made statements that violated prosecutors’ standards and established a “substantial likelihood of material harm” to the special grand jury.
The motion also criticized Ms Willis’ campaign Twitter account for posting “a biased political cartoon” in July that showed her in a boat with a fishing pole “fishing a recently subpoenaed witness out of a swamp”.
It also said her office arbitrarily named some witnesses as “targets” of the investigation, but not others.
Mr Trump announced a new presidential campaign in November and is ahead of his Republican opponents in most polls. But his legal woes pose challenges for which there is little, if any, precedent in American history. No sitting or former president has ever been charged with a crime.
Ahead of his public statements this weekend in anticipation of an impending indictment in New York, Mr Trump sent out numerous donation emails, criticizing prosecutors in the various cases against him and portraying himself as a victim of partisan forces. “The left has made America the ‘investigation capital of the world,’ while our country’s enemies brilliantly plot their next move to destroy our nation,” he said in one such March 13 email.
