ATLANTA – As a Georgia investigation into potential criminal interference in the 2020 election heats up, prosecutors are trying to force allies and advisers of former President Donald Trump to come to Atlanta to testify before a special grand jury.
Fulton County District Attorney Fani Willis opened the criminal investigation early last year, and the special grand jury was seated in May at her request. In a letter asking the county Superior Court chief judge to empanel a special grand jury, she mentioned the need to be able to issue subpoenas for witnesses who were otherwise unwilling to speak with her team.
For witnesses who live outside Georgia, the process of getting a subpoena is more involved. Willis last week initiated that process for seven Trump associates, including former New York Mayor Rudy Giuliani and U.S. Sen. Lindsey Graham, R-S.C.
WHY IS IT MORE COMPLICATED TO SUBPOENA AN OUT-OF-STATE WITNESS?
State courts don't generally have subpoena power beyond their state borders. For that reason, prosecutors must follow a multistep process to be able to compel an out-of-state witness to testify.
WHAT DOES A PROSECUTOR HAVE TO DO?
The prosecutor files a petition with the court explaining why the person's testimony is “material and necessary” for the grand jury investigation. Because the prosecutor must justify forcing a person to travel to another state, the petition can provide valuable insight into the otherwise secret workings of the special grand jury investigation.
For example, in several of the petitions filed last week in the investigation, Willis alleged that there was “a multi-state, coordinated plan by the Trump Campaign to influence the results of the November 2020 election in Georgia and elsewhere.”
In each petition, she outlined specific actions by the person whose testimony she was seeking to compel and identified “unique knowledge” the person has that makes their testimony necessary.
WHAT'S THE ROLE FOR JUDGES?
If the judge in the jurisdiction where the prosecutor works agrees that the witness's testimony is necessary, the judge issues a “certificate of material witness." That document is meant to be filed, along with the petition, in a court in the county where the witness lives in another state.
Fulton County Superior Court Judge Robert McBurney, who is overseeing the special grand jury, signed off last week on Willis' petitions. The next step is for the Fulton County district attorney's office to work with local prosecutors in each state where witnesses live to file the documents with courts there and to serve notice on the person whose testimony is sought.
That notice tells the person to appear before a home-state judge. If the person plans to fight the summons, the judge will set a hearing to determine whether a subpoena requiring that person to travel to Atlanta to testify before the special grand jury is appropriate. The witness is entitled to be represented by a lawyer at the hearing. Fulton County prosecutors may travel to be present at the hearing to provide support to the local prosecutors and possibly to testify about why the person's testimony is needed.
At the hearing, the judge will determine whether the person is, indeed, a “material and necessary" witness and whether traveling to testify will cause the person undue hardship. If the judge agrees with the prosecutor, the judge would order the person to go to Atlanta.
CAN THE WITNESS FIGHT THE SUBPOENA?
Yes. The person could file a home-state appeal, said Pete Skandalakis, executive director of the Prosecuting Attorneys' Council of Georgia. But it's more likely the person would file a motion in Georgia to try to keep from having to testify, he said. Then it would be up to McBurney to decide whether the person has to testify and whether any limits should be placed on the questions that prosecutors and grand jurors can ask.
A person who fails to appear when ordered to testify may be found in contempt of court and face a penalty that could include a fine or jail time.
In a Tuesday court filing, Graham's attorneys sought to quash his subpoena, arguing that he has “sovereign immunity” from state court procedures pertaining to his job as a senator, as well as constitutional protection because ”the testimony sought relates to matters within the legislative sphere.”
IF SOMEONE IS CALLED TO TESTIFY AS A WITNESS, DOES THAT MEAN THEY WON'T BE INDICTED?
No. Unlike a regular grand jury, a special grand jury can subpoena a target of an investigation. But the special grand jury can't issue an indictment. When it's done with its investigation, the special grand jury will issue recommendations. Willis is not bound by the special grand jury's recommendations, and it's ultimately her decision whether to seek an indictment from a regular grand jury.
Anyone who is subpoenaed can assert the Fifth Amendment right against self-incrimination when being questioned before a special grand jury, Skandalakis said.
IS IT POSSIBLE THAT TRUMP COULD BE SUBPOENAED?
Yes. Willis could use this process to try to compel testimony from the former president. Given his past record in legal cases, that could lead to a drawn-out fight in the courts.
WHAT CHARGES ARE PROSECUTORS CONSIDERING?
In a letter Willis sent to top-ranking state officials last year, she said she was looking into “potential violations of Georgia law prohibiting the solicitation of election fraud, the making of false statements to state and local government bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election’s administration.”
Among the things Willis has said her team is looking into is a Jan. 2, 2021, phone call in which Trump urged Georgia's secretary of state, Brad Raffensperger, to “find” enough votes to overturn his loss; calls that Graham made to Raffensperger; and false claims of election fraud that were made by Giuliani and others during December 2020 legislative committee hearings at the state Capitol.