Fulton DA Responds To Trump Motion To Magically Disappear Grand Jury Report

(by Gage Skidmore via Wikimedia)

In March, Donald Trump asked the Superior Court of Fulton County, Georgia to vaporize the special purpose grand jury (SPGJ) report on interference in the 2020 election. At the time, he was staring down the impending indictment by Manhattan District Attorney Alvin Bragg, and he hoped to limit the number of state prosecutors charging him simultaneously.

Trump's lawyers advanced several theories in support of their demand that the court disappear the SPGJ's report along with all the evidence that undergirded it and bar the entire Fulton County District Attorney's Office (FCDAO) from investigating the effort by Trump's allies to steal the state's 16 electoral votes from President Biden. But in the main, they argued that Georgia's SPGJ law is either unconstitutionally vague, or only authorizes civil, not criminal, investigations.

Today, DA Fani Willis filed her reply, in which she noted that both of these theories have been advanced by witnesses in this very case, including fake elector Cathy Latham, who joined Trump's motion. In every case but one, Georgia judges and their out-of-state and federal counterparts rejected this position, forcing witnesses like Lindsey Graham and Rudy Giuliani to get themselves down to Georgia, and even compelling the state's Governor Brian Kemp to testify. Only Texas judges rejected that position, refusing to compel conservative talk show host Jacki Pick to appear on the theory that the subpoena was civil, and only criminal subpoenas can compel the appearance of an out-of-state witness.

"Such unanimity indicates clarity rather than unconstitutional vagueness of some kind," wrote the FCDAO, adding, "To the extent that any conclusion can be drawn from the litigation arising from this matter, it is not that the statutes are too vague in determining whether a SPGJ can be of a criminal nature."

In the main, however, the FCDAO's response attacks Trump's standing to bring the motion at all. In his motion, Trump claimed to be "inextricably intertwined with this investigation since its inception." He then bootstrapped this tacit admission that he was at the nexus of the fake electors scheme into a claim to be vitiating the rights of the grand jury witnesses -- many of whom lodged exactly the same objections, only be overruled by the trial court.

The FCDAO counters that the movants have no cognizable, individual injury, and thus lack standing to bring the motion at all:

The Movants only arrive at an injury to themselves through a daisy chain of cause and effect: if other parties could articulate individualized injuries to themselves, this could affect the administration of the grand jury or the creation of its final report. If the final report is affected, it is possible that individuals named in the report could be affected. If the Movants are among the individuals named in the report, then their due process rights could possibly be injured. The individualized injury requirement prevents exactly this kind of attenuation.

She also points out that Trump can challenge anything he likes if and when he's indicted.

As for the disqualification claims, the FCDAO notes that this issue has been litigated several times in this case, including in a motion participated in by Latham herself when she shared counsel with her fellow fake electors. Recently, the FCDAO filed a motion to disqualify her previous counsel because some of her clients were in a position to testify against each other. In September, the Washington Post revealed that Latham, an official in Coffee County, had given Trump surrogates access to the county's voting machines and spent several hours with them as they imaged the data. This undercut her own deposition testimony that she "didn't go into the office" and only chatted for "five minutes at most" with the visitors. She has now gotten separate counsel.

The FCDAO argues that Trump's own disqualification claim would be untimely, even if he did have standing. If indeed he's been at the center of the investigation "since its inception," then he had two full years to make his argument that the DA should be barred from this investigation, and he waited until the SPGJ was done with its work to complain.

In the meantime, a coalition of media intervenors has filed its own response to Trump and Latham's motions arguing that SPGJ's report should not be quashed -- in fact it should be made public immediately and in full.

Hope springs eternal!

SPGJ Docket

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.