Latest filing sheds more light on Fulton DA's election interference probe

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Fulton County Georgia District Attorney Fani Willis photographed in her office on Jan. 4, 2022. A request by the Georgia prosecutor who’s investigating whether Donald Trump and others broke the law by trying to pressure Georgia officials to throw out Joe Biden’s presidential election victory has been approved. Willis last week sent a letter to county superior court Chief Judge Christopher Brasher asking him to impanel a special grand jury. Brasher issued an order Monday, Jan. 24, 2022 saying the request was considered and approved by a majority of the superior court judges.

Credit: AP Photo/Ben Gray

A new filing from the Fulton County District Attorney's office paints the clearest picture yet of the scope of a special grand jury's investigation into potential election interference in Georgia's 2020 presidential election by former President Donald Trump and his allies.

The Tuesday response to Gov. Brian Kemp's motion to quash his closed-door testimony in the probe outlines potential lines of questioning for the governor and hints that the wide-reaching investigation will likely not finish before the November midterm election.

Last week, Kemp's attorneys filed an eleventh-hour motion to halt his appearance by accusing Fulton County District Attorney Fani Willis of turning the special purpose grand jury proceedings "into its own mechanism of election interference" and argued Willis' team was delaying to hurt Kemp in the midterms. The motion also said that sovereign immunity and executive privilege exempted the governor from testifying.

Special Prosecutor Nathan Wade wrote Tuesday that Kemp's arguments to quash the subpoena did not apply, and that the governor's lawyers were the ones playing politics.

 "The baseless and inflammatory accusations of unethical behavior hurled about by [Kemp attorney] Movant — while unpersuasive and unhelpful to the grand jury’s work — will not deter the SPGJ or the District Attorney’s Office from securing necessary testimony from any and all relevant witnesses," Wade wrote. And to that end, the District Attorney submits that the instant motion to quash is wholly without merit."

The DA's office said Kemp's attorneys omitted emails from several threads filed in their motion, calling them "a rather unsophisticated manipulation of counsel's correspondence to shape the narrative" and said that documents the governor's office turned over to investigators' requests related to the election included unresponsive documents like a dead person's medical records, a soil report and "photographs of dogs apparently related to the purchase of protective canine vests."

As for the claims of sovereign immunity and executive privilege, Wade wrote that sovereign immunity did not apply to Kemp, "who is a mere witness" in the investigation, and that the courts do not recognize Georgia governors as having executive communications privilege.

But the most revealing part of the DA's filing is a section that notes why the governor is a key witness to the ongoing probe into potential criminal election interference, including Trump's previous statements about unsubstantiated claims of voter fraud and calls he made to Kemp to convene a special legislative session to reverse the election.

Kemp was one of a small but powerful group of Republican officials that did not promote false claims about the 2020 election and certified the results that saw President Joe Biden narrowly win Georgia's 16 electoral votes.

The special grand jury appears to be interested in the relationship between pressure Kemp faced post-election from Trump and others and the pressure Secretary of State Brad Raffensperger received, including the infamous call between Trump and Raffensperger where the state's top election official was asked to "find" votes to change the outcome of the already-certified election.

"Consequently, before the grand jury, [Kemp] can testify about any factual connections between the telephone calls to Secretary Raffensperger and telephone calls concerning relief being sought from [Kemp]," Wade wrote.

Since the special grand jury operates in secret, it is not publicly known what charges are being considered and who could be charged once the jury wraps up its investigation and writes a report recommending its findings. But recent weeks have seen revelations that the 16 Republicans who served as fake electors and Rudy Giuliani, Trump's personal attorney, have been notified they could face criminal charges for their role in the unsuccessful attempt to reverse Trump's defeat. 

Trump himself has not been subpoenaed so far, though he has retained a Georgia-based defense attorney Drew Findling in relation to the inquiry, and the public documents that have been released suggest that Trump's efforts to overturn the election play a central role in the grand jury's work.

A hearing has been scheduled for Thursday to address Kemp's motion to quash his subpoena.