ATLANTA – Lawyers for former President Donald Trump are attacking a special grand jury and prosecutors who investigated him in Georgia, asking a state court to throw out its report and all testimony from the inquiry and bar Fulton County District Attorney Fani Willis from continuing to investigate or prosecute Trump.
Lawyers Jennifer Little and Drew Findling wrote in the Monday filing that the special grand jury “involved a constant lack of clarity as to the law, inconsistent applications of basic constitutional protections for individuals being brought before it, and a prosecutor’s office that was found to have an actual conflict, yet continued to pursue the investigation.”
Jeff DiSantis, a spokesperson for Willis, said the prosecutor would answer the claims in court, but declined further comment.
The filing is an effort by Trump to escape one of the multiple legal challenges he faces. Trump said Saturday that he expects his indictment and arrest within days in a New York grand jury probe into hush money payments to women who alleged sexual encounters with the former president. Manhattan District Attorney Alvin Bragg recently offered Trump a chance to testify before the grand jury.
Trump also faces twin U.S. Justice Department criminal investigations. One, paralleling the Georgia inquiry, is examining his efforts to undo the results of the 2020 election.
A Justice Department special counsel has also been presenting evidence before a grand jury investigating Trump’s possession of hundreds of classified documents at his Florida estate.
If successful, the Georgia challenge could wipe out the entire investigation, requiring a new prosecutor who couldn't use any of the information Willis' team has gathered.
The Georgia filing argues that Fulton County Superior Court Judge Robert McBurney misinterpreted Georgia law to declare that the special purpose grand jury could run a criminal investigation with resulting stronger subpoena powers, allowing it to compel Georgia Gov. Brian Kemp and out-of-state witnesses to testify.
“This erroneous decision had vast constitutional and procedurals implications, and the resulting taint invalidates the constitutionality and validity of the entire proceeding,” the lawyers wrote.
The lawyers also argue that the grand jury didn’t sufficiently protect the due process rights of witnesses, who couldn’t be forced to testify in Georgia before a regular grand jury that was considering indicting them.
Trump's lawyers asked for another judge besides McBurney to hear their claims. The arguments about violating precedent could also signal that appeals are likely, which could bog down the Georgia proceedings after Willis said in a January hearing that decisions on whether to seek indictments were “imminent.”
On a call with reporters discussing the various legal cases involving Trump, Norm Eisen — who co-wrote a Brookings Institution report analyzing the Fulton County investigation — called the filings “invalid” and “borderline frivolous.”
“These don’t make sense,” Eisen said. “They challenge the legality of special grand juries in Georgia. ... it would be like standing up at the United States Supreme Court and saying, ‘This is an illegal body.’”
The filing also claims that McBurney erred by not disqualifying Willis and her office from the entire probe when he ruled in July that Willis could not pursue charges against Burt Jones, now Georgia's lieutenant governor. Jones, then a state senator, was one of 16 Georgia Republicans who signed a certificate falsely stating that Trump had won the state and declaring themselves the state’s “duly elected and qualified” electors. McBurney disqualified Willis because she hosted a fundraiser for Jones' unsuccessful Democratic opponent in the lieutenant governor’s race, creating a conflict of interest.
“The rights of President Trump, as well as others impacted by this investigation, are now subject to the prosecutorial discretion and decision-making of a prosecuting body that even the supervising judge acknowledged has an actual, disqualifying conflict," the lawyers wrote. "This is simply untenable.”
They also faulted Willis for granting repeated news interviews, citing a list of 39 media appearances and saying her comments cast ”a shadow of bias over her office and the entire investigation."
Trump's lawyers similarly argued that interviews that the foreperson and other grand jurors have given should undermine the case. The Associated Press first interviewed foreperson Emily Kohrs, a story that was followed by interviews with news outlets. She said the panel recommended that numerous people be indicted, but she declined to say who. Other grand jurors who declined to be named later spoke to The Atlanta Journal-Constitution.
The lawyers said those interviews would taint future jury pools and “violate notions of fundamental fairness and due process," while showing that jurors wrongly faulted witnesses for invoking their Fifth Amendment right to avoid self incrimination.
It's ultimately up to Willis to decide whether to go to a regular grand jury to seek one or more indictments in the case. She opened the Georgia investigation in early 2021, shortly after a recording of a phone call between Trump and a top state official was made public. During that Jan. 2, 2021, phone call, Trump suggested that Georgia Secretary of State Brad Raffensperger could “find” the votes needed to reverse his narrow loss in the state.
The special grand jury, which was seated in May 2022, heard from about 75 witnesses and considered other evidence before wrapping up its work in December. It did not have the authority to issue indictments but instead produced a report with recommendations for Willis. McBurney ordered most of that report to remain under seal.
Associated Press writer Meg Kinnard in Columbia, South Carolina, contributed to this report.