ATLANTA —The latest moves from a Fulton County special grand jury suggest the criminal investigation examining potential interference in Georgia’s 2020 elections is entering a new, more contentious phase that’s drawing increasingly closer to former President Donald Trump.
For the first time, the grand jury issued subpoenas this week that pierce the Republican’s inner circle of advisers and confidantes. Among the seven people who were sent so-called certificates of material witness — which essentially function as subpoenas for witnesses who live outside the state — are attorneys Rudy Giuliani and John Eastman and South Carolina U.S. Sen. Lindsey Graham.
District Attorney Fani Willis confirmed that additional summons could be on the way for other top Trump associates — and she isn’t ruling out subpoenaing the former president himself.
“I think that people thought that we came into this as some kind of game,” the veteran Democratic prosecutor told NBC News on Wednesday. “This is not a game at all. What I am doing is very serious.”
The maneuvering represents a major escalation in the probe, which was launched in February 2021 and is taking place at the same time a congressional committee is examining Trump’s role in the Jan. 6 attack on the U.S. Capitol.
Until last week, Georgia prosecutors largely focused on calling state and local witnesses to testify before the 23-person grand jury, which has met in secret since May and is tasked with writing a report that will recommend whether Willis should press charges against Trump or anyone else.
An indictment of a former president would be unprecedented in U.S. history.
Among those who have testified so far in the Fulton County probe are Secretary of State Brad Raffensperger and his top aides, Attorney General Chris Carr, several Democratic legislators and senior elections officials from Cobb and DeKalb counties. Gov. Brian Kemp is expected to deliver a sworn recorded statement to the jury later this month.
Danny Porter, the longtime former DA of neighboring Gwinnett County, said it will be much more challenging to secure testimony from Trump’s advisers.
“I think the circus has just begun,” said Porter, a Republican. “Once they start hitting these people — Giuliani, Eastman, Graham — you’re going to see a flurry of legal filings to try and prevent them from having to appear in front of the grand jury.”
Indeed, attorneys for Graham have already promised to challenge his subpoena. Lawyers Bart Daniel and Matt Austin indicated the Republican could cite the “Speech and Debate” clause of the U.S. Constitution, which shields members of Congress from being questioned in court about their legislative activities and the motivations behind them.
Graham placed two phone calls to the Secretary of State’s office in late 2020 to inquire about reexamining absentee ballots “in order to explore the possibility of a more favorable outcome” for Trump, his subpoena alleges.
Daniel and Austin said that Graham was “well within his rights” as the chairman of the Senate Judiciary Committee at the time to “discuss with state officials the processes and procedures around administering elections.”
Out-of-state witnesses who object to subpoenas are entitled to a hearing before a superior court judge in their home states, during which they can argue why they aren’t “necessary and material” to the investigation, or why testifying would be an undue hardship. Fulton prosecutors would also appear to defend the summons.
Porter said that such hearings will largely be “pro-forma” since the Fulton subpoenas lay out exactly why prosecutors see each witness’s testimony as critical to the probe. He said home state judges can grant a bond directing the witnesses to appear in court in Atlanta on a certain date or hold them in custody until they can be picked up by Fulton authorities.
“That’s the big difference between a regular subpoena and a material witness subpoena. There’s some muscle behind a (material witness) subpoena,” said Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia. “You’re just not going to be able to not show up.”
