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Judge Overseeing Fulton County DA’s Election Probe Won’t Quash Subpoenas Against Fake Trump Electors, Warns Against ‘October Surprise’


fani willis

The judge overseeing an investigation into former President Donald Trump’s attempts to overturn the 2020 election cautioned the Fulton County district attorney’s office against releasing the special grand jury’s report at politically sensitive times, warning against an “October surprise.”

“If the work is completed such that it lands on or near the election, it will stay completed and in my office until it gets disclosed after the election,” Fulton County Superior Court Judge Robert McBurney said.

A special grand jury is not empowered to return indictments, but it is expected to release a report that could be used to fuel criminal prosecutions. Fulton County District Attorney Fani Willis (D) underlined that point recently by sending so-called “target” letters to more than a dozen people, informing them they could be charged.

Earlier in the hearing, McBurney ruled against motions by GOP state Sen. Burt Jones and 11 of the 16 false Trump electors to quash their subpoenas after being designated as “targets.”

Holly Pierson, who represents 11 of the fake electors, said that forcing her clients to testify would only serve to force them to be “frog marched in front of the cameras.” They would invoke their Fifth Amendment rights against self-incrimination, in light of the fact that they have been informed they might be indicted, Pierson said.

“The Supreme Court has made clear that the main purpose one of the main purposes of the Fifth Amendment is to protect innocent people who can be bound up in ambiguous circumstances,” Pierson said.

Judge McBurney ruled, however, that they cannot avoid asserting those rights, but he urged the parties to meet to discuss what testimony may be possible, without forcing them to incriminate themselves.

“It may be that these witnesses have very, very brief appearances in front of the grand jury,” McBurney notes. “We’ll see how that flows.”

An assistant district attorney bristled at the accusation that they have courted bad press against Pierson’s clients.

“Publicity is a hindrance to the special purpose grand jury’s work,” the prosecutor said.

McBurney seemed, however, to have serious concerns about the district attorney openly supporting Charlie Bailey, who is an opponent of Jones in Georgia’s lieutenant governor election, in a fundraiser.

“I am focused very much on the appearance of the district attorney using that title, ‘District Attorney Fani Willis invites you encourages you to come to this fundraiser for the political opponent of the target of my investigation,'” McBurney said.

Under the legal standard, the district attorney’s outside counsel Anna Green Cross said that the fundraiser does not amount to an actual conflict.

Whether or not that is true, Judge McBurney suggested, the fundraiser reflected poor judgment.

“It’s a ‘What were you thinking?’ moment,” McBurney said. “The optics are horrific.”

Fani Willis fundraiser

Counsel for GOP state Sen. Burt Jones cited this promotion for a fundraiser that Fulton County District Attorney Fani Willis (D) held for Jones’s political opponent in a motion to disqualify. (Screenshot via Facebook)

If the district attorney wants to project any image of the probe as “nonpartisan” and “driven by the facts,” that behavior seemed to the judge as strikingly divergent.

“We follow the evidence where it goes and ignore the fact that I hosted a fundraiser for the political opponent of someone I’ve just named a target,” the judge said. “That strikes me as problematic, maybe not from an actual conflict level.”

It may, however, cause people at a cocktail party to question: “Do you think that this is a fair and balanced approach to things?”

Cross said that all of the target letters went out at the same time, saying politics played no roll in the timing it was received.

Judge McBurney appeared much more skeptical about Pierson’s claims that the district attorney’s investigation inappropriately targeted her clients. He called it entirely “unremarkable” that her clients were all Republicans, as the investigation relates to that party’s efforts to overturn the election.

Ultimately, McBurney reserved decision on the issue and indicated that he will release a written order on the disqualification question. Jones is represented by Hannah Clapp and William Dillon, who argued in court.

(Screenshot via Fulton

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."