Judge in Trump election probe rules fake electors can be served subpoenas

ATLANTA - A Fulton County Superior Court judge will not quash the subpoenas of the 11 "alternate electors" who tried to fight appearances before the Fulton County special purpose grand jury investigating whether former President Trump and others interfered with the 2020 election.

The special grand jury was selected and sworn in on May 2, 2022, and tasked with investigating "the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia."

Fulton County Superior Court Judge Robert McBurney, who is overseeing the special grand jury, ruled the 11 fake electors could not be excused from appearing to testify.  Attorneys for the electors had argued the subpoenas were "unreasonable and oppressive."  

Judge McBurney also heard arguments on a motion filed by state Sen. Burt Jones, who is the Republican nominee for lieutenant governor, alleging the investigation is politically motivated because Willis is an active supporter of his Democratic opponent.

Willis held a fundraiser for Charlie Bailey in June.  The event was advertised as being hosted by "District Attorney Fani Willis."  

Jones' attorney, William Dillon, asked the judge to disqualify Willis and her entire office from involvement with the special purpose grand jury and instead ask Attorney General Chris Carr, R-Georgia, to assign a different district attorney.

"Find somebody who doesn't have a dog in the hunt.  Fani Willis has a dog in this hunt," said Dillon.  

Willis’ office has said Jones’ claims are without merit and wrote in a filing Tuesday that Jones has identified no actions that show political motivation.

An attorney representing Willis told the judge that June fundraiser was specifically to raise money ahead of the June 21 runoff, not the general election.  In that race, Bailey faced fellow Democrat Kwanza Hall.

Judge McBurney said he would issue a written order on the issue of disqualification and that the order will include written assurances that the grand jury's findings will not be released close to the general election in November.  

"I will make sure that there is a reasonable time buffer," explained Judge McBurney.  

DA focuses on fake electors in Trump election probe

While the special grand jury operates in secret, recent public court filings have made clear that Willis is interested in the actions of the fake electors.

In a filing this week, lawyers for the 11 fake electors said that from mid-April through the end of June, Willis’s office had told them that they were considered witnesses, not subjects or targets of the investigation. For that reason, they had agreed to voluntary interviews with the investigative team, the motion said. Georgia Republican Party Chairman David Shafer and another of the fake electors appeared for interviews in late April.

On June 1, grand jury subpoenas were sent to all 11 of those fake electors. And on June 28, the district attorney’s office told their lawyers for the first time that their clients were considered targets, rather than witnesses, the motion said.

On Dec. 14, 2020, when Georgia’s official Democratic electors met to certify the state’s electoral votes for Biden, the fake Republican electors also met to certify a slate of electoral votes for Trump. They did that because there was a lawsuit challenging the election results pending at the time, and if a judge found that Trump had actually won their electoral slate would become valid, the motion said.

The district attorney’s office knew all that and properly labeled them witnesses, prompting them to agree to voluntary cooperation, the motion said.

"The abrupt, unsupportable, and public elevation of all eleven nominee electors’ status wrongfully converted them from witnesses who were cooperating voluntarily and prepared to testify in the Grand Jury to persecuted targets of it," the motion said. As a result, their lawyers advised them to invoke their federal and state rights protecting them against self-incrimination, and they "reluctantly" accepted that advice, the motion said.

The motion alleges that Willis is only pursuing some of the 16 electors as targets, specifically those who are prominent figures in the state Republican Party. That is evidence of political motivation, the lawyers argue.

However, Willis said in a court filing Tuesday that each of the 16 people who signed the false elector certificate has received a letter saying they are targets of the investigation and that their testimony before the special grand jury is required.

Other who have appeared before the special grand jury

A number of top Republican state officials — including Secretary of State Brad Raffensperger and Attorney General Chris Carr — have already testified before the special grand jury. Gov. Brian Kemp is set to give a sworn recorded statement on July 25.

Earlier this month, Willis began a process to subpoena out-of-state witnesses to testify. That included some close Trump advisers and allies, including U.S. Sen. Lindsey Graham of South Carolina and former New York Mayor Rudy Giuliani, who also served as Trump’s lawyer.

The Associated Press contributed to this report