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the District Attorney’s partiality naturally, immediately, and reasonably arises in the minds of the public, the pundits, and—most critically—the subjects of the investigation that necessitates the disqualification. An investigation of this significance, garnering the public attention it necessarily does and touching so many political nerves in our society, cannot be burdened by legitimate doubts about the District Attorney’s motives. The District Attorney does not have to be apolitical, but her investigations do.
As a result, McBurney quite properly disqualified Willis and her entire office from targeting Jones in any way with the Fulton County grand jury, including no longer publicly categorizing him “as a subject or target of the grand jury’s investigation.”
But here’s the problem. Under the holding of a 2014 decision by the Georgia Supreme Court, McLaughlin v. Payne, McBurney should have disqualified Willis and every prosecutor in her office from the entire grand jury investigation of Trump and all of the other codefendants who have been indicted, including the other contingent electors.
In the McLaughlin case, another Georgia county’s district attorney appeared as a witness for the state in a criminal prosecution because his daughter was a classmate of the victim of the crime. The DA had participated in the early investigation of the crime, his daughter had told him what she had heard about the crime, and the assistant prosecutor conducting the trial reported directly to the DA.
The state Supreme Court held that the district attorney had “a personal interest in the case that disqualified him from participating in the prosecution of the case at all, not just serving as trial counsel.”
What’s more, that conflict applied to the district attorney’s “entire office” since under the state’s Constitution, the county prosecutor “is a constitutional officer” who “appoints the assistant district attorneys” and whose “authority is derived from him” and “serve only at his pleasure.”
The fact that the district attorney was only one of multiple witnesses in the criminal prosecution did not remedy this conflict, and he and his entire office had to be disqualified from the prosecution.
In the Trump case, Willis convened a “single purpose grand jury” to investigate one specific subject, according to a letter she sent in January 2022 to the chief judge of Fulton County, requesting that the grand jury look into “any coordinated attempts to unlawfully alter the outcome of the 2020 elections” in Georgia.
Willis said the purpose of the grand jury would be to review “this matter only” and issue a single report making recommendations about potential indictments.
The state Supreme Court’s McLaughlin decision explains that when a prosecutor is found to have a personal interest in a case that is grounds for disqualification, then that prosecutor and the prosecutor’s entire office are disqualified from the entirety of the proceedings. That personal interest—in fact, a partisan, political interest—is exactly what McBurney found when he disqualified Willis and the entire Fulton County District Attorney’s Office from targeting Burt Jones.
But Willis and her office should have been disqualified from continuing the grand jury investigation as a whole, not just against one target.
McBurney has no authority to carve out a disqualification for just one potential defendant. In the Trump indictment, Willis clearly claims that all of the defendants involved in questioning the outcome of the 2020 election were inextricably intertwined with each other, the Trump campaign, and the Georgia Republican Party. In her view, this included possible defendants such as Jones (who is, in fact, referenced in the indictment as “Unindicted Co-Conspirator Individual Number 8”).
By smearing the other contingent electors, Willis would be smearing Jones too, and that should have been obvious at the time. In fact, the very basis for the prosecutor’s use of the Racketeering and Corrupt Organizations Act to indict Trump and the others is her claim that they all were involved in a grand conspiracy for which each one has full liability.
Disqualifying Willis, given her personal conflict of interest in attempting to lend her name and office’s credibility to help Jones’s Democrat opponents while targeting Jones as part of this alleged interlocking conspiracy, should have led to her disqualification—and all of the lawyers in her office—from the entire grand jury investigation.
When McBurney was asked to reconsider his decision by the other contingent electors (now named as defendants) and issue a broader disqualification, the Superior Court judge refused. He issued an arrogantly dismissive three-page order Aug. 25, 2022, that essentially ignored the findings of his previous order and failed to even discuss the inconvenient McLaughlin decision.