A judge in Fulton County, Georgia, failed to properly follow the precedent set by the state Supreme Court in allowing the county’s top prosecutor to go forward with a grand jury investigation of former President Donald Trump after disquaifying the prosecutor from part of the probe for misbehavior.
In a legal analysis Aug. 15 in The Daily Signal, I pointed out the problems with the spurious indictment of Trump and 18 codefendants orchestrated by Fani Willis, the politically ambitious district attorney in Fulton County.
This combination of factors has resulted in an unprecedented attack on the First Amendment and the structure of the American legal system.
So what is the ethical problem above and beyond the constitutional and legal problems with Willis’ indictment of Trump? On July 25, 2022, Fulton County Superior Court Judge Robert McBurney disqualified Willis from continuing to target then-state Sen. Burt Jones as part of her grand jury investigation.
Jones, the Republican candidate for lieutenant governor of Georgia at the time, went on to be elected in November. He was also one of the contingent electors who showed up at the Georgia State Capitol in Atlanta on Dec. 1, 2020—the statutorily prescribed day—to vote for Trump to preserve a remedy for him if a court or the state Legislature overturned the results of the presidential election in Georgia.
Three of the contingent electors that day have been indicted by Willis, supposedly for creating “false electoral college documents.”
As McBurney outlined in his disqualification order, Willis “hosted and headlined a fundraiser” for Charles Bailey, the Democratic candidate opposing Jones, at a time when “media coverage of the grand jury proceedings was national and non-stop and the District Attorney was the very public face of those proceedings.”
Willis, the Superior Court judge wrote, “pledged her name, likeness, and office” to help Jones’ opponent at the same time she was targeting Jones and “publicly (in her pleadings) labeled Senator Jones a ‘target’ of the grand jury’s investigation.”
This created a “plain—and actual and untenable—conflict,” McBurney wrote, since any decision Willis made about Jones “in connection with the grand jury is necessarily infected by it.”
McBurney concluded that concern about the actions of:
the District Attorney’s partiality naturally, immediately, and reasonably arises in the minds of the public, the pundits, and—most critically—the subjects of the investigation that necessitates the disqualification. An investigation of this significance, garnering the public attention it necessarily does and touching so many political nerves in our society, cannot be burdened by legitimate doubts about the District Attorney’s motives. The District Attorney does not have to be apolitical, but her investigations do.
As a result, McBurney quite properly disqualified Willis and her entire office from targeting Jones in any way with the Fulton County grand jury, including no longer publicly categorizing him “as a subject or target of the grand jury’s investigation.”
But here’s the problem. Under the holding of a 2014 decision by the Georgia Supreme Court, McLaughlin v. Payne, McBurney should have disqualified Willis and every prosecutor in her office from the entire grand jury investigation of Trump and all of the other codefendants who have been indicted, including the other contingent electors.
In the McLaughlin case, another Georgia county’s district attorney appeared as a witness for the state in a criminal prosecution because his daughter was a classmate of the victim of the crime. The DA had participated in the early investigation of the crime, his daughter had told him what she had heard about the crime, and the assistant prosecutor conducting the trial reported directly to the DA.
The state Supreme Court held that the district attorney had “a personal interest in the case that disqualified him from participating in the prosecution of the case at all, not just serving as trial counsel.”
What’s more, that conflict applied to the district attorney’s “entire office” since under the state’s Constitution, the county prosecutor “is a constitutional officer” who “appoints the assistant district attorneys” and whose “authority is derived from him” and “serve only at his pleasure.”
The fact that the district attorney was only one of multiple witnesses in the criminal prosecution did not remedy this conflict, and he and his entire office had to be disqualified from the prosecution.
In the Trump case, Willis convened a “single purpose grand jury” to investigate one specific subject, according to a letter she sent in January 2022 to the chief judge of Fulton County, requesting that the grand jury look into “any coordinated attempts to unlawfully alter the outcome of the 2020 elections” in Georgia.
Willis said the purpose of the grand jury would be to review “this matter only” and issue a single report making recommendations about potential indictments.
The state Supreme Court’s McLaughlin decision explains that when a prosecutor is found to have a personal interest in a case that is grounds for disqualification, then that prosecutor and the prosecutor’s entire office are disqualified from the entirety of the proceedings. That personal interest—in fact, a partisan, political interest—is exactly what McBurney found when he disqualified Willis and the entire Fulton County District Attorney’s Office from targeting Burt Jones.
But Willis and her office should have been disqualified from continuing the grand jury investigation as a whole, not just against one target.
McBurney has no authority to carve out a disqualification for just one potential defendant. In the Trump indictment, Willis clearly claims that all of the defendants involved in questioning the outcome of the 2020 election were inextricably intertwined with each other, the Trump campaign, and the Georgia Republican Party. In her view, this included possible defendants such as Jones (who is, in fact, referenced in the indictment as “Unindicted Co-Conspirator Individual Number 8”).
By smearing the other contingent electors, Willis would be smearing Jones too, and that should have been obvious at the time. In fact, the very basis for the prosecutor’s use of the Racketeering and Corrupt Organizations Act to indict Trump and the others is her claim that they all were involved in a grand conspiracy for which each one has full liability.
Disqualifying Willis, given her personal conflict of interest in attempting to lend her name and office’s credibility to help Jones’s Democrat opponents while targeting Jones as part of this alleged interlocking conspiracy, should have led to her disqualification—and all of the lawyers in her office—from the entire grand jury investigation.
When McBurney was asked to reconsider his decision by the other contingent electors (now named as defendants) and issue a broader disqualification, the Superior Court judge refused. He issued an arrogantly dismissive three-page order Aug. 25, 2022, that essentially ignored the findings of his previous order and failed to even discuss the inconvenient McLaughlin decision.
McBurney made the broad assertion that a prosecutor who pursues an investigation into possible electoral wrongdoing “is not automatically biased and partisan—and subject to disqualification—because of the common political affiliations of the subjects (and targets) of the investigation.”
But no one had claimed that Willis should be disqualified because she is a Democrat and all of her targets are Republicans. McBurney himself found that Willis had an “obvious and irreconcilable” conflict of interest that called her objectivity and the legitimacy of the grand jury investigation into question. Yet McBurney failed to address this.
This issue should be reconsidered by the courts, especially in light of recently surfaced tweets by Willis questioning the outcome of past elections, including the 2018 midterm election and the 2020 presidential election.
These are exactly the type of public postings that Willis cited in her grand jury indictment of Trump and 18 co-defendants. Apparently, they don’t get the same immunity she has granted herself to question the outcome of an election or to raise questions about the behavior of election officials.
This shocking hypocrisy is just more evidence of Willis’ politically biased behavior.
All of this should raise great concern among Georgians, who may be victimized by such an attack on basic First Amendment activities, and in the state Legislature, which is supposed to ensure that the state’s justice system is fair and honest and not used as a political weapon.
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