Accéder au contenu principal

Georgia judge skeptical of claims of political bias in 2020 election probe

featured image

Comment

ATLANTA — The judge presiding over the grand jury investigation into possible election interference by Donald Trump and his allies expressed skepticism Thursday over arguments from Republicans that the prosecution, led by a Democratic district attorney, was politically motivated.

Fulton County Superior Court Judge Robert C.I. McBurney did not immediately rule on a request from Georgia Gov. Brian Kemp (R) to toss a subpoena for his testimony from Fulton County District Attorney Fani Willis (D).

“It is not my space” to focus on politics, McBurney said as lawyers for Kemp argued that the subpoena had already become a political issue this election season. “I don’t think it is the right forum” to debate the political ramifications of the case, said the judge.

With the midterm elections approaching, the investigation has expanded dramatically, reaching Trump’s inner circle and edging closer to the former president himself. Hours after the hearing ended Thursday, newly filed records showed prosecutors are seeking testimony from Trump’s former chief of staff Mark Meadows, lawyer Sidney Powell and cybersecurity expert Phil Waldron.

In recent days, a new wave of political and legal tensions erupted into public view, with Kemp’s attorney and others accusing prosecutors of politicizing the sensitive case.

The Georgia criminal investigation into Trump and his allies, explained

Kemp, who resisted pressure from Trump to overturn Georgia’s election results, is considered a key witness. Prosecutors said in a filing this week they would like to ask the governor about calls he received from Trump and others pressing him to contest the state’s election results.

Kemp is running for reelection against Democrat Stacey Abrams, a former state lawmaker and voting rights advocate whom he narrowly beat in 2018. Last week, Abrams tweeted that the governor’s “refusal to testify shows that he will do anything to win an election. Kemp wants credit for ‘standing up’ to Trump but refuses to testify against the former president and said he would welcome his endorsement.”

In court on Thursday, lawyers for the governor cited Abrams’ comments as an example of the politicization of the ongoing inquiry.

“What began as an investigation into election interference has itself devolved into its own mechanism of election interference,” the governor’s lawyer wrote in a 121-page motion seeking to kill a subpoena for the governor’s testimony or at least delay the matter until after the election.

Willis denied any political motivation in court filings that became public last week.

“Let’s discuss the ways you are wrong: This is NOT a politically motivated investigation. It is a criminal investigation,” Willis wrote in a letter released as part of last week’s motion.

It was not clear from the hearing Thursday, which lasted more than two hours, whether Kemp’s effort to invalidate the subpoena will prevail. In July, the judge rejected a similar request from the lieutenant governor and a former state senator to toss subpoenas.

Earlier Thursday, McBurney issued a decision rejecting a request from 11 of Georgia’s 16 Republican would-be electors who sought to disqualify the prosecution team because of political bias. Prosecutors say these electors may have been part of a plan to try to cast electoral college votes for Trump in Georgia and other states despite Joe Biden’s victory. Lawyers for the electors deny any wrongdoing, citing a pending court case over the Georgia election at the time they were certified. The roster of electors includes Georgia Republican Party Chair David J. Shafer, candidate for lieutenant governor Burt Jones, county-level GOP officials, a former state lawmaker and local Republican activists.

Trump campaign documents show advisers knew fake-elector plan was baseless

The ongoing inquiry, McBurney wrote, “is inherently ‘political’ in the simple and unremarkable sense that politicians and leaders of a specific political party are alleged to have undertaken efforts to defeat the will of the Georgia electorate.”

A prosecutor who takes on such a case, he wrote, “is not automatically biased and partisan — and subject to disqualification — because of the common political affiliations of the subjects (and targets) of the investigation.”

Brian McEvoy, Kemp’s attorney, told the judge the governor is being asked to testify as the gubernatorial election is “reaching a crescendo.” He questioned why the district attorney’s office would not permit Kemp to testify after the election.

McBurney noted that the criticism from Kemp’s political rivals over his resistance to testify “happened because what had originally been negotiated didn’t happen.” He said other statewide leaders, like Secretary of State Brad Raffensperger (R), had testified without fanfare.

“We agreed on a date. You were available, you had confirmed the governor was available,” McBurney told Kemp’s counsel.

Prosecutors have said they intend to avoid grand jury activity after the start of early voting in October.

Kemp’s lawyers also cited the doctrines of sovereign immunity and executive privilege that they argued would protect the governor from a subpoena. They said they were alarmed by the decision to subpoena the governor when he’d previously agreed to be interviewed under certain conditions.

“We’ve been trying to come in voluntarily, facilitate the dialogue to discuss executive privilege, attorney-client privilege, those types of things. They’ve rejected at every turn,” Derek Bauer, one of the governor’s lawyers.

Nathan Wade, an attorney for the district attorney’s office, said that Kemp’s legal counsel was trying to “control” how prosecutors interview Kemp. McBurney noted that “if anything, Kemp is a victim” of the crimes potentially committed, not a target. Prosecutors confirmed that.

As Willis and her staff seek testimony from prominent Georgia Republicans and Trump allies, they face increasingly heated criticism from Republicans — and praise from those who support the inquiry.

“This is reckless and it borders on maniacal,” said John Malcolm, a former federal prosecutor in Georgia who is now vice president of the Institute for Constitutional Government at the Heritage Foundation. “I don’t know whether she’s doing this to aggrandize her political fortunes or to try to affect the results of the upcoming midterm election or to try to affect the results of the 2024 presidential election — or whether it’s all three.”

Norman Eisen, a counsel in the first impeachment of Trump, lauded Willis’s success in getting reluctant witnesses, like former New York mayor Rudy Giuliani, an attorney for Trump, to appear before the grand jury. Eisen called Kemp’s legal arguments “borderline frivolous” and “foot dragging.” He discounted the complaints of political bias as what “any litigation adversary encounters when pursuing accountability against Trump and his imitators.”

Trump allies resist testifying as Georgia election probe expands

Willis launched the probe days after taking office in early 2021 following news reports that Trump and his allies placed calls to Georgia officials seeking to overturn election results.

Kemp’s lawyer suggested in his motion that the district attorney’s office was engaged in “gamesmanship,’’ noting that talks with prosecutors over terms for a voluntary interview with the governor were proceeding well when the district attorney’s office canceled negotiations and sent him a subpoena. He included email communications and other correspondence as evidence.

In a subsequent filing, Willis’s office suggested Kemp’s lawyer had cherry-picked the correspondence as part of an effort to make the prosecutor’s office seem unreasonable.

The filing said Kemp’s “strident show of noncooperation” could itself be seen as “a tactic to influence the November election.” The prosecution filing rejected any delay in the governor’s testimony.

Kemp’s filing came a day after lawyers for 11 of Georgia’s would-be Trump electors filed their motion asking that Willis and her team be disqualified from investigating them — and perhaps from the entire investigation — for conducting a politically motivated prosecution.

The court filing cites the judge’s recent decision to disqualify Willis from investigating one would-be Trump elector — Jones, a state senator — after Willis hosted a fundraiser ahead of the Democratic primary for Jones’s eventual opponent in the upcoming lieutenant governor’s race. The judge called Willis’s participation in the fundraiser a “ ‘what are you thinking?’ moment.”

Attorneys for the 11 GOP electors argued in their motion that they are “inextricably intertwined” with Jones’s campaign and thus face the same “entirely reasonable concerns of politically motivated prosecution” that the judge found in disqualifying Willis from investigating Jones.

The electors’ lawyers asked that the court find another prosecutor who could “conduct this investigation adequately, fairly, and free from the existing personal and political conflicts with this DA and her office.”

In a ruling Thursday, the judge rejected the effort to disqualify Willis.

Additional exchanges with Fulton County prosecutors emerged in a court of appeals filing late last week by lawyers for Sen. Lindsey O. Graham (R-S.C.), who has been subpoenaed to testify in the case.

Graham’s lawyers released details of conversations, including a recorded voice-mail message, in which prosecutors agreed to postpone Graham’s scheduled testimony pending resolution of his appeal — and then suddenly reneged.

Willis and her team have said they want to ask Graham about phone calls he made to Georgia’s secretary of state and his staff shortly after the 2020 general election. During those calls, Graham asked about “reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump,” prosecutors wrote.

Graham’s lawyers have said his outreach was consistent with his duties as a senator and thus protected by the constitution. They filed requests to delay any testimony until after an appellate court considers the matter.

Prosecutors resisted, arguing that a delay in Graham’s appearance would also “delay the revelation of an entire category of relevant witnesses,” pushing back the timeline of the investigation.

The appellate court on Sunday granted Graham a reprieve, delaying an order for him to appear this week pending further review by a federal judge in Atlanta.

On Wednesday, Graham’s lawyers asked the judge to “bar questioning on all the topics sought by the District Attorney and this subpoena.”

U.S. District Judge Leigh Martin May, who initially rejected Graham’s request, is not expected to rule before next Wednesday, when additional court filings are due.

Willis continued this week to face resistance from potential grand jury witnesses. Former Trump campaign attorney, Kenneth Chesebro, asked McBurney on Thursday to invalidate the district attorney’s subpoena for his testimony, scheduled for Aug. 30, citing attorney-client privilege concerns.

Chesebro said the district attorney’s likely questions about his role advising the Trump campaign would be off-limits because of confidentiality protections for communications between lawyers and their clients. Such testimony, Chesebro’s lawyer wrote, would “potentially be embarrassing and/or detrimental to his former client” and the Trump campaign has instructed Chesebro to “maintain all applicable privileges and confidentiality.”

Chesebro, who promoted legal theories in support of Trump’s use of alternate electors, asked the judge to require Willis to detail the types of questions she intends to ask.

The prosecutor’s requests for testimony from Meadows, Powell and Waldron were first reported Thursday by Politico. The Meadows subpoena request notes that he was on the call that Trump made to Raffensperger urging him to find additional votes.

The petition for Waldron’s appearance specifies that he testified before a Georgia Senate subcommittee along with Trump lawyer Rudy Giuliani about vulnerabilities of the Dominion voting machines used throughout the state. Powell’s testimony is sought for her work challenging votes in multiple states, including Georgia. The petition specifically cites her reported efforts to obtain elections data from Coffee County, Ga., in early January 2021. Meadows, Powell and Waldron did not respond to requests for comment.

Commentaires