Georgia’s payback machine: Fani Willis resists subpoenas by state lawmakers over Trump prosecution

Even before Project 2025 made it a Republican goal to use federal power to bring progressive prosecutors to heel, the Fulton county, Georgia, district attorney, Fani Willis, found herself in the crosshairs of conservative state legislators angered by her prosecution of Donald Trump.

That conflict found its way into yet another courtroom on Tuesday. Willis’s office defended itself against a subpoena by a state senate committee, which had demanded her appearance to explain how she might have spent money on Nathan Wade, her former special prosecutor and paramour, in the prosecution of now president-elect Trump and others charged in the election interference case. She rejected two subpoenas issued by the Senate special committee on investigations demanding her testimony and a barrel full of documents about the relationship, her office’s finances and the case.

The future of the Trump election interference case in Georgia remains unclear. The state appeals court canceled a hearing scheduled for this week, in which Trump and other defendants had sought to remove Willis as prosecutor on the case. The appeal cited Willis’s relationship with Wade, arguing that the financial entanglement between the two created a conflict of interest that should force a recusal.

The appeals court could – and often does – rule without hearing oral arguments. It could scuttle the case entirely, order Willis to be removed as prosecutor, sever Trump from the trial or allow the case to move forward as is.

Federal prosecutors rolled up their cases after Trump won election to a second term, noting that the federal government cannot prosecute a sitting president. The Georgia case remains the only one left to prosecute against Trump, with 14 co-defendants still in legal jeopardy.

Anger over that prosecution has come from multiple flanks within the Republican party. Even as former Georgia governor Roy Barnes argued on behalf of Willis before Fulton superior court judge Shukura Ingram on Tuesday that the state senate subpoenas were unconstitutional, another judge issued an order declaring her office in violation of the state’s Open Records Act in another case.

Conservative legal activists from Judicial Watch sued Fulton county after Willis’s office refused to turn over records of her communications with special counsel Jack Smith and the House January 6 committee. Fulton county superior court judge Robert McBurney ordered her office to turn the records over within five days.

Trump supporters outside the Lewis R Slaton courthouse in Fulton county, Georgia, on 25 August 2023. Photograph: Megan Varner/Reuters

Republicans want to know how Willis might have coordinated Trump’s prosecution with the Department of Justice and, ultimately, the Biden White House. But they’re also contemplating how the results of the committee investigation may lead legislators to rewrite laws to take authority away from district attorneys, to cut Willis’s budget or to otherwise limit her authority to prosecute wayward Republicans.

Willis has said she views this as political harassment and is fighting them all the way down, likening it to the legislative movement that created a state panel that could remove local prosecutors.

Willis’s office argued before that committees representing only the statehouse or the state senate do not have subpoena power: both chambers must issue a subpoena as a joint act under the Georgia state constitution.

“The operative word is ‘general assembly’,” argued Barnes. The term refers to both chambers of the Georgia legislature together, he said. “Only the general assembly has the right of subpoena. Not the senate. Not the house.”

Willis’s office argued that a subpoena cannot be issued when the general assembly is not in session, as the committee did in this case, and that the subpoenas are overbroad relative to limitations made in Georgia’s Open Records Act and a common-law sense of separation of powers. Barnes argued that legislative oversight over state spending is being used by hostile politicians on a fishing expedition-as-harassment, citing the Mazars decision by the US supreme court seeking Trump’s financial records from his accountants.

“This wrought committee created by one set of the general assembly says, ‘Oh, wouldn’t it be fun for us to just drag the district attorney down and see what she’s got on old Donald Trump,’” Barnes said. “Well, Fani Willis had an affair with Nathan Wade. This is a pretext. We would be blind not to see what all of us see. This was nothing but singling out one person who’s been duly elected in this circuit, and duly re-elected, to embarrass her. It’s not for any legitimate legislative reason.”

Josh Belinfante, representing the senate committee, argued that the district attorney is challenging the constitutionality of subpoena power for all legislative committees, and that doing so gets between lawmakers and their duty.

“They’re investigating … these allegations that may show that existing state laws – including those establishing the processes for selecting, hiring and compensating special assistant district attorneys – are inadequate,” Belinfante said. “It is necessary to determine whether the alleged conduct of District Attorney Willis, if proven to be true in whole or in part, should be addressed by the enactment of new laws or prompt some change in state appropriations, or both.”

Legislators began looking at the actions of district attorney before the Trump case rocketed to the top of their attention, Belinfante said. Arguments were made that one provision of state statute could be used to limit the authority of the legislature that passed that statute in the first place.

“It is presumed that the general assembly can act unless the constitution says otherwise,” Belinfante said. “There is no constitutional prohibition against investigations.”

Belinfante noted that the state constitution empowers each chamber to establish legislative committees, and that – in the absence of an expressed prohibition – that gives each chamber the power to issue subpoenas without consulting the other chamber.

No Georgia court has ever examined the subpoena power of the state legislature as Ingram has been asked to do on Tuesday, legal experts say.