Government

Trump Launches Himself At GA Supreme Court In Bid To Head Off Fulton Co Indictment

Well, you can try ...

By  
on
President Donald Trump and Vice President Mike Pence Visit The Federal Emergency Management Agency Headquarters

(Photo by Evan Vucci-Pool/Getty Images)

On Friday, Donald Trump’s legal team in Georgia threw a Hail Mary pass to head off an indictment by Fulton County District Attorney Fanny Willis. In fact, they threw two passes. Or, to be scrupulously accurate, they threw the same pass twice — once to the Supreme Court of Georgia, and once to the Superior Court of Fulton County.

Under Georgia law, a special purpose grand jury investigates public corruption, issuing a report, but not an indictment. That report is then taken to a regular grand jury, which does its own investigation and swears out the indictment. In basically identical “Petitions for Writs of Mandamus and Prohibition,” attorneys Drew Findling, Marissa Goldberg and Jennifer Little demanded last week that the court quash the special purpose grand jury report on 2020 election interference issued in January and bar use of any evidence it considered against their client. And for good measure, they’d like to remove DA Willis from any future 2020 election cases.

The Superior Court petition, filed “out of an abundance of caution,” would appear to be procedurally improper on its face. OCGA § 9-6-40 specifies that “The writ of prohibition is the counterpart of mandamus, to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction where no other legal remedy or relief is given.” Georgia’s Superior Court, where Judge McBurney presided over the special purpose grand jury and where the regular grand jury which will consider the report was empaneled last week, cannot possibly be “subordinate” or “inferior” to itself. And Fulton County District Attorney Fani Willis is neither a “court,” nor a “judicial tribunal.”

That leaves the “real” claim before the Supreme Court, which, Trump argues, should assert its rarely used (read: never) original jurisdiction to toss out the state’s entire special purpose grand jury scheme as unconstitutional.

“To be sure, the whole of Georgia’s special purpose grand jury scheme is so unadministrable as to be facially void. Ergo, it is not possible for this, or any, special-purpose grand jury to act within the law,” his lawyers argue.

This would seem to be quite a lift, since Georgia’s special purpose grand jury statute has been heavily litigated. And so much of the petition is taken up with seeking to magically disappear the grand jury’s report before it can form the basis of an indictment, which DA Willis has telegraphed will likely come in the last week of July, or the first week of August.

Sponsored

Indeed, Trump has been seeking this remedy from Judge McBurney since March, when he filed a motion to quash the report claiming impropriety by DA Willis, as well as the judge himself. Judge McBurney has not yet ruled on that motion, and in the meantime, the regular grand jury has been sworn in to consider the prior panel’s report.  So Trump demands that the high court intervene lest the “ponderously slow” trial court allow this case to proceed in the normal course,  allowing Willis to indict Trump before the 2024 election, at which point “the damage will have been done.”

In essence, this is a rerun of the argument Trump made last year before Judge Cannon in the Southern District of Florida. Where anyone would else would have to wait to challenge the sufficiency of the evidence post-indictment, Trump demands instead to have the evidence magicked away by the court before it can even be considered. And the only new evidence he’s come up with since March is a 1997 case where a grand jury indictment was expunged — not quashed — because the prosecutor used it to investigate public corruption, where he should have used a special purpose grand jury. This ignores a 2015 decision where the state’s highest court held that the remedy for overreach by a special purpose grand jury was not suppression of its findings.

In short, neither court seems likely to be persuaded by this petition. But we did get this rather colorful metaphor out of it, as Trump’s lawyers seek to convince the court to toss the special purpose grand jury report lest the grand jurors fall magically under its sway:

Left untouched, the report’s existence will allow the District Attorney to circumvent the normal presentation of evidence and could invite a new grand jury to uncritically ratify the previous findings. It is one thing to indict a ham sandwich. To indict the mustard-stained napkin that it once sat on is quite another.

Normally we’d be the ones calling Trump a “mustard-stained napkin.” But if Trump’s lawyers want to start writing this column for us … have at it.

Sponsored

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

Topics

, , , , ,