But the judge signaled he’d likely greenlight certain questions about the lawmakers’ third-party communications.
Fulton Superior Court Judge Robert C. I. McBurney was hearing a motion put forward by members of Georgia’s legislature seeking to quash a subpoena in the grand jury’s investigation.
During a hearing on the motion, McBurney said he wanted to offer general guidelines for what kinds of testimony would be protected by legislative privilege or immunity. The judge did not issue a formal ruling laying out that guidance, but said he would do so soon, as some of the subpoenas are for appearances requested in mid-July.
“If the grand jury is investigating alleged criminal actions by third parties — not the witnesses — then if their exploration leads to questions of a legislator or her staff members about communications with people outside that legislative sphere that are related to the investigation, I believe those are not protected by legislative immunity,” McBurney said at the hearing.
The subpoena fight emerges from the investigation Fulton County District Attorney Fani Willis has launched
into former President Donald Trump’s election subversion gambits in Georgia.
A state Senate hearing that GOP Georgia legislators organized in December 2020, at which Trump attorney Rudy Giuliani pushed false claims of mass election fraud, has become a focus of the investigation.
Already, at least four witnesses — three of them Democratic state lawmakers — have testified about the hearing in front of the special purpose grand jury that has been convened for Willis’ investigation.
Two Republicans signed on to request with the court that it quash subpoenas for their grand jury testimony in a Monday court filing that argued that both legislative immunity and legislative privilege shielded their testimony. Specifically, they asked the court to declare out of bounds any testimony about “matters that occurred in the witness’ legislative” testimony about members’ “motivations” in their legislative activity and any testimony concerning “research” done by the legislator, “including interviewing constituents, lobbyists, or other sources of information” as they relate to the legislative process.
The motion was put forward by former state Sen. William Ligon, Lt. Gov. Geoff Duncan, “and others,” and the Republicans sought to shield “any” General Assembly member from testifying about those topics. At the hearing Friday, their attorney Don Samuels — who is acting in the capacity of special assistant legislative counsel — said other members of the legislature were interested getting guidance from the court about what testimony is protected by privilege.
In a response filed with the court on Thursday, the district attorney’s office pointed to the subject matter of the hearing in question. Referring to a recommendation listed in a report issued by legislators calling for the “rectifying” of the 2020 election results, Willis’ office said in the filing: “The General Assembly cannot, either in 2020 or today, ‘rectify’ election results by changing the outcome of a certified election that had already taken place, and it is never, and can never be, considered a legitimate ‘legislative duty’ to attempt to do so.”
“Holding hearings and generating a report and generating report intended to propose ‘rescinding’ and election certification is entirely outside of the General Assembly’s jurisdiction,” Willis’ court filing said. “Additionally, presenting demonstrable falsehoods a ‘findings’ in a committee report should never be considered conduct protected by legislative immunity or privilege, and to suggest otherwise makes a mockery of the ‘integrity of the legislative process’ the movants supposedly seek to preserve by shielding themselves from legitimate inquiry from Georgia citizens.”
The judge signaled Friday he didn’t find that argument persuasive. The bulk of the hearing focused on what kinds of testimony the grand jury could seek from legislators and their staff about their communications with third parties. Samuels argued testimony that got into the content of those conversations would violate constitutional protections for lawmakers because that testimony would touch on a lawmaker’s motivation for taking legislative action. The judge declared testimony about a lawmaker’s motivations among the broad buckets protected by legislative immunity and privilege.
McBurney did not give a clear indication how much he would restrict questions about the substance of those conversations. But he suggested that grand jury questions about who the lawmakers spoke to as they prepared for the December 2020 hearing would be permissible. The judge said he believed the grand jury was “entitled” to ask questions about which third parties lawmakers spoke to so that it could then bring those third parties in for questioning.