Can Georgia senators subpoena Fulton County District Attorney Fani Willis?

State Sen. Bill Cowsert, the chairman of the Senate Special Committee on Investigations, has said “the law is clear” that Willis, a Democrat, must adhere to a summons if one is issued.

“The legislative branch has the inherent power to investigate and to utilize subpoenas,” the Athens Republican told reporters this spring.

Willis, who is leading the high-profile election interference case into former President Donald Trump and 14 others, has pushed back, saying “I don’t even think they have the authority to subpoena me.”

“They need to learn the law,” she said.

So far, a summons has yet to be issued. But the fight is expected to soon ramp up as Cowsert’s committee zeroes in on the DA.

The panel has held four hearings and heard from a handful of witnesses since it was formed earlier this year. On Friday, it will question two district attorneys from outside metro Atlanta and state Rep. Mesha Mainor, a Democrat-turned-Republican who has sued the DA and other Fulton officials for allegedly shielding a man who stalked her.

Cowsert also wants to hold a hearing with legal experts who can testify that the legislature has the power to compel Willis’ testimony.

If Willis “wants to fight it in court,” he said in May, “well then, we’ll take it to court.”

Senate ups scrutiny

The Senate panel was created as nine defendants in election case, including Trump, sought to disqualify Willis from the prosecution because of a romantic relationship she had had with Nathan Wade, the private attorney she hired to oversee the case.

The committee’s GOP boosters designed it to investigate whether Willis had any conflicts of interest or misspent any public funds, including during vacations with Wade. While the panel lacks the power to prosecute, disbar or directly discipline Willis, it can recommend changes to the state budget or draft legislation setting stricter oversight guidelines for prosecutors. Crucially, the panel can also continue to draw negative attention to the DA in the lead-up to the November election, in which Willis faces a long-shot Republican opponent.

Cowsert has insisted his investigation is not a “political witch hunt” or payback for Willis’ probe into Trump, though the Senate GOP, led by Lt. Gov. Burt Jones, has escalated its scrutiny of the DA over the last year.

Credit: Hyosub Shin/AJC

Credit: Hyosub Shin/AJC

Jones was once a named target of Willis’ election probe for his role as a GOP elector, though the DA was later disqualified from investigating him after she held a fundraiser for his then-Democratic opponent.

Cowsert did not respond to interview requests for this story.

The investigative panel has already heard testimony from Ashleigh Merchant, the defense attorney who has led the push to disqualify Willis; Fulton leaders who appropriate local funding; and Amanda Timpson, a former employee who said Willis fired her after she raised concerns about spending on a gang prevention and youth outreach program.

Willis has described the committee as highly partisan and accused GOP senators more broadly of targeting her because “they worry their hero is treated the same as everybody else,” referring to Trump.

‘Isn’t even a close call’

As a district attorney, Willis holds a relatively unique position in state government. Even though she’s an elected official representing Fulton County, she is a state constitutional officer, which technically means she’s a member of Georgia’s executive branch.

Legislators subpoenaing a constitutional officer from another branch of government raises questions regarding separation of powers, said Georgia State University law professor Anthony Michael Kreis.

“Much like Congress can’t haul a president into a legislative hearing, the Senate can’t disrupt Willis’ work by dragging her into a legislative oversight endeavor,” he said, adding that they may be able to force her to produce documents.

The DA has hired former Democratic Gov. Roy Barnes, a star Marietta attorney, to defend her. Asked to comment for this story, Barnes said, “I do not believe the Senate standing alone has the right to subpoena” and declined to comment further.

Attorney Joseph Young, Barnes’ onetime legislative counsel, said there are two state statutes on the books laying out how the Legislature can issue subpoenas: either through the House or Senate Ethics committees or the General Assembly acting as a whole — not just a single chamber acting alone.

“This isn’t even a close call,” he said.

If Cowsert’s committee wants to compel Willis’ testimony, Young said, it can turn over the matter to the Senate Ethics Committee or enlist the support of the House.

“I’ve seen a lot of bad blood, and I have not seen the House willing to go along with some of the things that the lieutenant governor and Senate have proposed,” Young said.

Inherent powers

Others believe that the Legislature does have the inherent ability to subpoena witnesses and documents — and that a court is likely to agree.

At the federal level, a person can be found in contempt of Congress and be sent to jail if they fail to honor a subpoena. (Former Trump aides Steve Bannon and Peter Navarro were each given prison sentences recently for defying summons from the now-disbanded committee that investigated the Jan. 6 attack.)

David Cook, the secretary of the Georgia Senate, pointed to several U.S. Supreme Court decisions “confirming the inherent constitutional power of a legislative body” such as the state Senate “to investigate and oversee the affairs of state.”

“This is well settled constitutional law,” he said, adding that state statutes also grant the Senate the power to conduct investigations, issue and enforce subpoenas.

A report issued by the General Assembly’s Office of Legislative Counsel in 2016 notes that the branch’s investigative powers may be exercised through its committees, including single-chamber special committees, if they are delegated such powers. The resolution passed by the Senate earlier this year that created the Willis investigative committee specified that the panel has subpoena power.

Pete Skandalakis, the head of the Prosecuting Attorneys’ Council of Georgia, noted the lack of case law on legislative subpoena power. But he said his organization believes the statute that gives the ethics committees the ability to issue subpoenas and punish contempt, combined with language in the state Constitution allowing the General Assembly to handle matters like contempt, “may provide the courts an avenue to allow legislative committees to issue subpoenas.”

Court fight coming?

Willis could try to fight a subpoena, a move that would create a media spectacle.

Such a legal challenge would go before Fulton County Superior Court. A judge could schedule a “show cause” hearing for the DA to argue why she should not be held in contempt for refusing to obey the subpoena.

Key, the Madison attorney, said there are good arguments on both sides.

“There is no precedent right now. So, I think whatever decision a judge reaches on that, it’ll end up in the Court of Appeals.”

Credit: Steve Schaefer/AJC

Credit: Steve Schaefer/AJC

A three-judge panel on that same appeals court is currently considering whether Willis should be removed from the election case. It has scheduled oral argument in early December and must issue a ruling by March.

Emory University law professor John Acevedo said Willis could have success arguing the investigative committee is punitive and “designed almost as a stand-in for a prosecution of her conduct.”

“That isn’t clear that’s allowed under the Georgia Constitution,” Acevedo said. “You can have investigative committees, but you really cannot have prosecutorial committees, that would be left for the state bar association or to individual defendants to bring suit for rights violations.”

Acevedo said legislators would have a better argument if they call multiple DAs to testify from elsewhere in the state to show their oversight is focused more broadly than just Willis.

“I’ve never really heard of a Senate trying to supervise a prosecutor to the degree that seems to be going on here,” he said.

Staff writer Bill Rankin contributed to this report.