A Fulton County judge is disqualifying District Attorney Fani Willis and her office from questioning state Sen. Burt Jones as part of their investigation into whether former President Donald Trump and his allies broke the law as they sought to overturn Georgia’s 2020 elections.
In a surprise decision and a significant rebuke of the DA, Fulton Superior Court Judge Robert McBurney on Monday granted a motion from Jones, the Republican nominee for lieutenant governor, to replace Willis and the entire Fulton DA’s office in the examination of his specific role in the case.
That means another set of prosecutors will determine whether to subpoena the Jackson Republican, whether to categorize him as a target of the investigation or whether any charges should ultimately be brought against him.
“An investigation of this significance, garnering the public attention it necessarily does and touching so many political nerves in our society, cannot be burdened by legitimate doubts about the District Attorney’s motives,” McBurney wrote. “The District Attorney does not have to be apolitical, but her investigations do.”
McBurney’s decision came in response to a June fundraiser that Willis hosted for Charlie Bailey, a former colleague who is now Jones’ Democratic opponent for lieutenant governor. At the time, Bailey was a candidate in the Democratic runoff but, as McBurney noted, the DA’s investigation was well underway.
Jones filed the disqualification motion earlier this month, the same day it became public that the DA’s office considered him one of the targets of the investigation.
Jones was among the 16 Republicans who served as “alternate” electors for Trump in December 2020. All 16 were recently sent letters alerting them that they could be indicted, the DA’s office confirmed in a filing last week.
During a hearing on Thursday, McBurney called the optics of Willis’ fundraiser “horrific” and worried they could undermine public confidence in the investigation.
He wrote Monday that while Willis was within her rights as an elected official to sponsor a fundraiser, her decision “has consequences.”
“This scenario creates a plain — and actual and untenable — conflict,” McBurney wrote. “Any decision the District Attorney makes about Senator Jones in connection with the grand jury investigation is necessarily infected by it.”
The Prosecuting Attorneys’ Council of Georgia will now select a replacement DA’s office that can question Jones, according to the Attorney General’s office.
Pete Skandalakis, executive director of the council, said late Monday that “no decision has been made as to whether or not an appointment will be made” and indicated that one may not be coming quickly.
“Staff and I are reviewing the Court’s decision and researching case law,” Skandalakis said in a statement. “It is well documented that this is a Special Grand Jury which is investigating the issues before it and this Grand Jury cannot issue criminal indictments. Therefore, pending further analysis it may be premature to appoint a criminal prosecutor at this time.”
McBurney’s order clarified that the Fulton DA’s office can still gather evidence about Jones’ conduct from other witnesses. But Willis’ prosecutors cannot “make use of any such evidence to develop a case against the Senator.”
The judge on Monday denied a similar attempt from 11 of the other GOP electors to disqualify Willis and the Fulton DA’s office from their portions of the investigation, saying there was no clear conflict of interest. He also directed those electors to honor subpoenas requiring their testimony this week before a special grand jury examining the case.
A spokesman for Willis did not respond to a request for comment.
Jones called McBurney’s decision “a huge win for our campaign — but more importantly, for due process and the rule of law in Georgia.”
“If Fani Willis and Charlie Bailey spent half as much time addressing real issues as they did grandstanding and using their offices to score political points, Atlanta might not have the record number of homicides that it does under their watch,” Jones said in a statement.
The ruling could undercut a central attack line for Bailey, who has hammered Jones for his participation as a Trump elector. The Democrat on Monday didn’t let up, saying that Jones is “desperately trying to distract from his leading role in the attempted overthrow of the United States Government.”
McBurney’s ruling surprised some legal experts. Several interviewed by The Atlanta Journal-Constitution last week predicted that the state senator‘s challenge wouldn’t prevail.
Anthony Michael Kreis, a Georgia State University law professor, said Monday that McBurney’s order shows he’s giving special care to the special grand jury at the heart of the DA’s investigation. (McBurney was tasked in January with overseeing the grand jury.)
“Judge McBurney understands the gravity of the situation and I think he understands he needs to really be as protective of this grand jury and the grand jury process given how high the stakes are and how tumultuous the political environment around it is,” he said.
Kreis said McBurney’s order “is not going to make the case crumble” overall.
“The judge is really giving out a warning shot to the DA’s office that they need to be exceedingly careful going forward,” he added. “Yes, he dealt them a loss in one sense, but in another sense he’s trying to do them a big favor in the long run.”
The Story So Far:
The 16 Georgia Republicans who served as “alternate” electors for Donald Trump in 2020 were informed earlier this month that they were targets of the Fulton County special grand jury investigation and could be indicted. One of the electors, state Sen. Burt Jones, filed a motion aiming to disqualify Fulton DA Fani Willis and her office from questioning him, citing a fundraiser Willis held for Jones’ Democratic opponent. In an order released Monday, McBurney said Willis and her office were barred from questioning, subpoenaing or charging Jones. The Prosecuting Attorneys’ Council of Georgia will now select a replacement office to investigate the state senator.
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