Fani Willis plans to defy subpoena and skip Senate hearing

The veteran prosecutor has challenged the two subpoenas in Fulton Superior Court and is seeking an emergency injunction that would block members of the committee from pursuing or enforcing them.

Willis’ lead attorney, former Gov. Roy Barnes, told The Atlanta Journal-Constitution on Thursday that Willis “will not appear until there has been a judicial determination of the validity of the subpoena.”

Bill Cowsert, the Athens Republican who leads the Senate committee, told The AJC he would seek to enforce the summons in court if Willis fails to appear.

“I am very disappointed that an elected official such as Ms. Willis, who is elected to enforce the law, believes that she is above it,” Cowsert said. “However, I am not surprised that she refuses to obey a lawful subpoena, given her previous conduct and actions.”

The investigative committee was created earlier this year as nine defendants in Willis’ election interference case, including former President Donald Trump, sought to disqualify Willis from the prosecution because of her romance with Wade, the special prosecutor she hired to oversee the case. Wade was forced to resign in March at the behest of a Fulton judge, who said either Wade or Willis needed to step aside to bolster public confidence amid a ballooning public spectacle.

The committee’s GOP boosters are probing whether Willis had any conflicts of interest or misspent any public funds, including during vacations with Wade. While it lacks the power to prosecute, disbar or directly discipline Willis, the panel can recommend changes to the state budget or draft legislation setting stricter oversight guidelines for prosecutors.

Cowsert is considering legislation that would regulate district attorneys’ conduct more broadly, as well as the use of special grand juries and special prosecutors — but that he wanted to hear directly from Willis first.

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

Credit: Ben Gray

Credit: Ben Gray

The Legislature’s subpoena power has never been tested under Georgia law, according to legal experts previously interviewed by the AJC. They expect the fight will likely end up before the state Court of Appeals, the same body that is currently considering whether Willis should be removed from the election case.

Among the information the committee has requested from the DA’s office: every email and text between Willis and Wade over the last five years; an accounting of gifts, money and items of value Willis and Wade exchanged; information about federal grants the office has received; and communications between Willis, her staff and the White House, Justice Department and U.S. Congress about the 2020 election case.

Willis did not produce documents before the committee’s Sept. 6 deadline, according to a source with knowledge who was not authorized to speak on the record.

Barnes and his colleague John Bartholomew argued in a court filing last week that the subpoenas are “void and unenforceable” because they were issued after the General Assembly adjourned at the end of March. They said the committee didn’t have the authority to compel the production of such information, arguing that power rests only with the ethics committees or the two chambers of the Legislature acting together.

Barnes and Bartholomew also said the committee’s requests include privileged and confidential information.

The subpoenas lack a legitimate legislative purpose and are instead intended to punish and cast doubt on Willis, Barnes and Bartholomew argued. They accused the committee of seeking to interfere with a coequal branch of government.

In their response last week, committee members argued Willis’ offensive was premature. Friday’s hearing needs to first occur, attorneys Josh Belinfante and Vincent Russo said, and then the committee will move to enforce its subpoena power in court.

The fight goes to the “core of the General Assembly’s authority and ability to investigate matters of public concerns,” according to Belinfante and Russo. Should the court grant an emergency injunction, they said, it would impose “significant harm” on the committee and the entire legislative process.

“Where (Willis) could lose this battle and live to fight another day, the legislative authority and prerogative of the Special Committee — comprised of Georgians’ elected state senators of both parties and from districts across the state — would be thwarted until some uncertain time.”

Friday’s hearing is expected to be held even without Willis and include testimony from David Cook, the recently-retired secretary of the Senate, and Legislative Counsel Stuart Morelli. It is anticipated that both will argue that the special committee has the inherent power to investigate the affairs of the state and issue and enforce subpoenas as a part of that.

The fight is then expected to move to the courthouse, though it is still unclear which judge will ultimately hear the case.

After Willis filed her subpoena challenges, a handful of Fulton Superior Court judges recused themselves one by one, including Scott McAfee, the judge overseeing the underlying election interference case.

On Thursday, Judge Shukura Ingram acknowledged in an order that she currently had jurisdiction. But without giving specifics, she noted that she had an “association with one party” involved in the subpoena fight. Ingram said she believed she could be impartial despite that connection but said she would recuse if both sides did not let her know by Friday at noon that they were ok with her continuing on the matter.