ATLANTA — A judge is considering what guidelines to place on questions that can be asked of Georgia state lawmakers called before a special grand jury in an investigation into whether former President Donald Trump and others illegally tried to influence the 2020 election in the state.
Lawyers representing a former state lawmaker and the state's lieutenant governor had asked the judge to quash subpoenas for them to testify before the panel, citing legislative privilege and immunity. If he wouldn't agree to that, they said in a motion filed earlier this week, they urged him to set guidelines for the questioning.
“I'm not quashing any of these subpoenas, but I do want to provide a framework so it's not every third question we're calling a timeout,” said Fulton County Superior Court Judge Robert McBurney, who's overseeing the special grand jury, at a hearing Friday.
He said he would provide that guidance in a written ruling. He also said he would make sure he's available on days when state lawmakers are called before the panel to address any conflicts that arise.
Fulton County District Attorney Fani Willis opened the investigation early last year and in January of this year took the unusual step of requesting a special purpose grand jury. She wrote in a letter to the county superior court chief judge that her team believes the 2020 general election “was subject to possible criminal disruptions” and is looking into “any coordinated attempts to unlawfully alter the outcome of the 2020 elections in this state.”
The special grand jury was seated in May and began hearing from witnesses in June. Top state elected officials, including Secretary of State Brad Raffensperger and Attorney General Chris Carr, have already appeared before the special grand jury. At least three Democratic members of the General Assembly have also testified before the panel.
Former state Sen. William Ligon, who didn't seek reelection in 2020, and Lt. Gov. Geoff Duncan, have both received subpoenas to testify before the special grand jury this month. Attorneys Don Samuel and Amanda Clark Palmer, who have been hired as special assistant legislative counsel, filed the motion to quash those subpoenas.
They argue the state Constitution provides immunity to legislators and their staff, citing a provision that says no member of the General Assembly “shall be liable to answer in any other place for anything spoken in either house or in any committee meeting of either house.”
They assert that that protection covers any legislative activity including participation in floor debates, committee hearings and meetings; conversations with staff and other legislators and their staff on legislative matters; and all other activities within their official responsibilities.
Ligon chaired a Senate subcommittee hearing on Dec. 3, 2020, during which Rudy Giuliani, a lawyer for Trump, and others spoke for several hours and presented claims of alleged election fraud, many of which “have been demonstrated to be utterly false,” Willis argued in a response to the motion. Ligon then made public a report summarizing the public comments during the hearing and presenting the assertions made by Giuliani and others “as true ‘findings’ even when they had been publicly (and repeatedly) debunked by state officials for weeks," Willis wrote.
The report concluded with the suggestion that if a majority of the state's lawmakers agree with the findings of the report, the certification of the 2020 election should be rescinded and the General Assembly “should act to determine the proper Electors to be certified to the Electoral College in the 2020 presidential race.”
“The General Assembly cannot, either in 2020 or today, ‘rectify’ election results by changing the outcome of a certified election that has already taken place, and it is never, and can never be, considered a legitimate ‘legislative duty’ to attempt to do so,” Willis wrote.
McBurney noted during Friday's hearing that both sides agree that legislative immunity exists, that it's a matter of where the line should be drawn for questioning before the special grand jury. Communications between lawmakers and their staffs or between lawmakers during or in preparation for legislative proceedings are privileged, he said, but it's less clear where the line is for communications with third parties in this context.
McBurney said that whatever guidance ends up flowing from Friday's hearing will not apply solely to Ligon and Duncan but will likely have a “carryover effect” when other lawmakers appear before the special grand jury. But he acknowledged that each lawmaker's situation may require some degree of individual assessment.