Fulton County DA Fani Willis’s aggressive moves appear to be spurring the Justice Department to ramp up its own January 6 investigation.
Fulton County DA Fani Willis’s aggressive moves appear to be spurring the Justice Department to ramp up its own January 6 investigation.
F ulton County prosecutors have advised lawyers for Rudy Giuliani that he is a target of the state grand-jury investigation of alleged Trump-campaign interference in the 2020 presidential election. The warning to the former New York City mayor and private lawyer to former President Trump came from the office of District Attorney Fani T. Willis, a partisan Democrat.
Giuliani has been ordered to appear before the grand jury on Wednesday.
When prosecutors seek to compel information from someone in a criminal investigation, the first question posed by that person’s attorney is, “What’s my client’s status?” The prosecutor’s answer usually determines the degree to which the person will cooperate in the probe.
There are three status categories. In ascending order of seriousness, they are: witness, subject, and target. A witness is a person who is not suspected of wrongdoing, but who is believed to have testimony or other evidence relevant to the investigation — say, the victim in a robbery case. A subject is a person whose conduct is being evaluated by the grand jury; whether he or she will be charged depends on how the investigation goes and whether prosecutors conclude that there is sufficient evidence to indict. Finally, a target is someone who is highly likely to be charged with one or more crimes.
The Georgia probe being conducted by Willis seems highly political, and, in parts, deceptive and unethical.
Giuliani’s lawyers say Willis’s office initially identified him as a mere witness in the investigation before recently changing its position. There seems to be a pattern here.
Joe Biden won Georgia by less than 12,000 votes (a margin of less than 0.25 percent out of about 5 million ballots cast). DA Willis has publicly suggested that Trump may be guilty of “racketeering,” but her investigation centers on efforts by the former president and his team to pressure Republican state officials and the GOP-controlled state legislature to invalidate the popular vote, or at least enough of it that Trump would edge out Biden.
Part of this effort, which is also at the center of the Justice Department’s federal criminal investigation, is the so-called fake-electors plot. As a part of that plot, a group of prominent Georgian Trump supporters convened in December 2020 as if they were an alternative slate of electors, intending to cast the state’s 16 electoral votes for Trump. While the matter is still under investigation, the prosecutor’s assessment of the evidence is dubious and, shall we say, evolving.
There was only one slate of electors certified by Georgia’s state government, as required by federal and state law: the slate that stood for Biden. By their account, the putative “fake” electors for Trump were actually contingent electors. They did not pretend to have been certified by the state. Rather, they assembled on the contingency that Trump might win his court challenges in Georgia or otherwise have the state’s election result overturned by lawful means. As I detailed at the time, the lawyers who handled the Trump campaign’s election litigation in Georgia were not the ones who raised some of the more outlandish claims pressed by other Trump allies; they filed an election-law challenge that, though ultimately unsuccessful, was more traditional and detailed than other Trump-campaign lawsuits.
The contingent electors were assembled out of a legal concern that, if the election were lawfully overturned, Georgia’s electoral votes could not be counted for Trump unless they had been cast by December 14, the day the Electoral College met. They executed provisional electoral ballots and produced a certificate that even Willis has conceded was “unofficial.” This, the electors’ lawyers point out, is consistent with what’s supposed to happen under Georgia law if an election is still being contested in court when a deadline for certifying the election occurs. The electors maintain that their actions were never meant to have any legal force unless the courts or the legislature invalidated Biden’s victory, which never came close to happening.
To be sure, some top Trump advisers improvidently used the word “fake” to describe the “contingent” electors (or, as one adviser said correcting another, “alternative” electors). In late December 2020, moreover, one Trump legal adviser, Kenneth Chesboro, suggested that the contingent electors could submit their votes to Congress to give Trump’s allies there a rationalization for objecting to the state-certified electoral votes for Biden. But that was not the contingent electors’ doing. As far as they were concerned, they were on board only in case Biden’s win in Georgia was lawfully overturned, and since it wasn’t, the exercise was moot.
This exculpatory explanation makes sense. It is thus not surprising that Willis’s prosecutors initially advised the would-be Trump electors that they were regarded as mere witnesses. As a result, some of them agreed to sit for informal interviews, beginning in April 2022. Then, however, June rolled around. That’s when the House January 6 committee geared up and began its nationally televised presentations, while the Democratic base complained that the Biden Justice Department was not being aggressive enough in the quest to nail Trump for a Capitol riot-related crime.
Democrats, it emerged, had settled on a public narrative that the “fake electors” scheme in various contested states, including Georgia, was a key element of what the January 6 committee dubiously described as Trump’s “sophisticated seven-part plan.” Georgia, it was also clear, would play an outsized role in the committee’s presentation — mainly because of Trump’s phone call pressuring Brad Raffensperger, Georgia’s Republican secretary of state, to invalidate various categories of Biden votes.
Suddenly, on June 1, Willis’s prosecutors issued grand-jury subpoenas to the contingent electors. This was strange, since the prosecutors had already been getting voluntary cooperation from the subpoenaed individuals. But it did advance the narrative that the Georgia activities highlighted by the committee were the subject of a very active state criminal investigation.
Lawyers for the contingent electors believe prosecutors expected that, upon receiving grand-jury subpoenas, their clients would refuse to testify, invoking the Fifth Amendment right against self-incrimination. In its high-profile hearings, the House committee has repeatedly drawn attention to Trump allies who have “taken the Fifth,” implying that they’ve done so because they know they are guilty of crimes — an inference the Supreme Court has proscribed as unconstitutional if drawn by prosecutors in the presence of the jury.
Nevertheless, the contingent electors did not take the Fifth; they began calling Willis’s office to schedule their grand-jury appearances. Meanwhile, on June 21, the committee held its hearing on the “fake electors” scheme, at which Raffensperger and other Georgia witnesses testified. A week later, on June 28, the committee presented Cassidy Hutchinson’s explosive testimony, which appeared to tie former president Trump more closely to the Capitol riot, and was thus widely touted as evidence that he and his confederates should be indicted.
On that same day, June 28, Willis’s office abruptly advised the contingent electors that their status in the investigation had changed: No longer witnesses, they were now seen as targets likely to be indicted in the case.
Lawyers for the contingent electors claim that the evidentiary record in the Georgia case had not changed, and thus that there was no reason for Willis to change their clients’ status. Willis disputes this, but she has not revealed the “new evidence” she says she’s developed. In any event, because the contingent electors have been labeled as targets, the likelihood that they will now assert the right against self-incrimination has increased markedly. After all, what prudent lawyer would allow his client to testify when an elected prosecutor is clearly playing to a political constituency?
The contingent electors obviously didn’t want to take the Fifth, having seen what the committee does to people who dare rely on their constitutional rights. So they moved to quash the subpoenas. A dispute about a person’s status in an investigation, however, is not a valid basis to quash a subpoena, and Fulton County Judge Robert McBurney denied the motion to quash, putting the ball back in the contingent electors’ court.
Judge McBurney also, however, disqualified Willis from investigating state senator Burt Jones, one of the contingent electors. Jones is the Republican nominee for lieutenant governor, and it turned out that Willis, in her official capacity as district attorney, had sponsored a fundraiser for Charlie Bailey, Jones’s Democratic opponent in the race. No partisanship here at all, just a call-it-like-she-sees-it DA, right? Judge McBurney apparently didn’t think so. Because of her ethical lapse, Willis and her office are now barred from proceeding against Jones, issuing a subpoena to him, or labeling him a target.
Besides branding Giuliani and the electors as targets, Willis has also issued grand-jury subpoenas to top Trump allies on Capitol Hill — Senator Lindsey Graham (R., S.C.) and Representative Jody Hice (R., Ga.). It appears that Graham and Hice are not targets — at least not yet. Graham says Willis’s office has assured his lawyers that he’s seen as just a witness in the case. But you can ask the contingent electors and Giuliani just how much such assurances are worth.
Graham is suspected of pressuring Raffensperger on Trump’s behalf. Hice attended a controversial December 21, 2020, Oval Office meeting between Trump and his congressional allies, who strategized about the then-imminent January 6 joint session of Congress and urged the president to pressure the Justice Department to be more aggressive in investigating supposed election fraud.
Both Graham and Hice, who unsuccessfully challenged Raffensperger in a primary earlier this year, have moved to quash Willis’s subpoenas in federal court on the basis of the Constitution’s speech-or-debate clause — thus far, without success.
Like others in the probe, Giuliani is trying to avoid being pinned into a position of taking the Fifth. He has tried to avoid testifying at all, with his lawyers telling Judge McBurney that he underwent a cardiac procedure in July and that doctors recommend that he not fly to Atlanta. McBurney gave him an extra week, advising him that he should plan to be in court on August 17 and that he could travel “on a train, on a bus or Uber” if flying was not an option. (To the patent amusement of the Times, Giuliani’s lawyer, Bob Costello, said “No comment” when asked how his client would be traveling to Atlanta for tomorrow’s grand-jury session.)
Giuliani’s lawyers have further told prosecutors that he would not be able to say much because he’d have to invoke the attorney–client privilege in response to questions about his dealings with Trump. Prosecutors were unmoved. Plainly, they figure they have many questions that would not trigger a valid A–C privilege invocation; in addition, if the privilege were asserted, they would ask the court to find that it was vitiated by the crime-fraud exception. Either way, chances are that Giuliani will have to testify or take the Fifth in the next 24 hours.
It’s reasonable to surmise that all these aggressive moves Willis’s office is taking are yet another factor spurring the Justice Department to step up the pace of its January 6 investigation. The stop-the-steal activities in Georgia are central to the federal criminal probe, just as they are to the January 6 committee. Justice Department prosecutors typically try to race in ahead of state investigators in such situations, for fear that a state prosecution — particularly if not handled well — could damage their federal case. Norman Eisen, a Democratic lawyer who worked on the House’s 2019 impeachment of Trump, told the Times that if Giuliani is a target of the Georgia prosecutors, Trump must be one, too: “They are simply too entangled factually and legally in the attempt to use fake electors and other means to overturn the Georgia election results.”
The Justice Department I know does not let the likes of Fulton County grab such a juicy case. I mention that just in case you were wondering why there has suddenly been a flurry of DOJ investigative activity that seems obviously related to January 6 . . .