FILED IN OFFICE

JU 20

IN THE SUPERIOR COURT OF FULTON COUNTY DEPUTY C(EA’K SUPERIOR COURT

STATE OF GEORGIA FULTON COUNTY, GA

IN RE 2 MAY 2022 SPECIAL PURPOSE

GRAND JURY 2022—EX-oooo24

ORDER DISQUALIFYING DISTRICT ATTORNEY’S OFFICE

On 2o January 2022, the District Attorney of Fulton County petitioned the Chief

Judge of the Superior Court of Fulton County to convene the Superior Court bench to
consider approving the District Attorney’s request for impaneling a special purpose grand

jury to investigate possible criminal interference in the November 2020 general election
in Georgia. On 24 January 2022, the Chief Judge, having received a majority of the twenty

judges’ assent, issued an Order authorizing the special purpose grand jury. Among the

various instances of possible electoral interference this body would be investigating was

the decision by State Republican party officials to draft an alternate slate of Presidential

electors --

despite the vote count indicating their candidate had lost by thousands of votes.

One of the more prominent persons who chose to participate in this scheme was State

Senator Burt Jones.

On 2 May 2022, the special purpose grand jury was selected and sworn in; in June

2022 it began receiving evidence.1 The District Attorney serves as the “legal advisor” to

the grand jury; she and her team of prosecutors also largely shape the grand jury’s

investigation by subpoenaing witnesses and leading their questioning. As forecast, the

District Attorney --
and thus the grand jury --

began to investigate the alternate electors

l Notably, the District Attorney explained her pause in inifiating the special purpose grand jury’s
investigau've activity by referencing the 24 May 2022 primary elections in Georg'a, indicating an awareness
that her work with the grand jury could have an impact on electoral outcomes.
l
stratagem. The District Attorney has issued subpoenas to at least twelve of the alternate

electors, including one to Senator Burt Jones, who is the Republican candidate for

Lieutenant Governor in the upcoming 2022 general election.

Senator Jones has filed a motion to disqualify the District Attorney and her office

from further investigation into his connection to the apparent efforts to interfere with or

otherwise undermine the outcome of the 2020 general election. Eleven other alternate

electors have jointly filed a motion to quash their grand jury subpoenas, asserting their

Fifth Amendment privilege against compulsory incrimination. Senator Jones

subsequently joined in his fellow electors’ motion and they adopted his. On 21 July 2022,

the Court held a hearing on these motions. Based on the arguments and evidence

presented, and a review of relevant legal authorities, the Court GRANTS Senator ones’s J
motion to disqualify the District Attorney and her office --
as to Senator Jones only. The

Court DENIES the motion to disqualify as to the other eleven alternate electors and also

DENIES the motion to quash as to those eleven!

DISQUALIFICATIQN
On 24 May 2022, Senator Jones won outright the Republican primary for

Lieutenant Governor, earning over 50% of the vote.3 On the Democratic side, a runoff

was necessary, as Kwanza Hall, the top vote getter, secured only 30% of the vote. Trailing
him with 18% of the vote was the second-place finisher, Charlie Bailey. Hall and Bailey

2 J
Given the Court’s ruling on Senator ones’s motion to disqualify, his adopted motion to quash is moot, as
he is no longer a permissible subject (or target or object) of this special purpose grand jury’s investigation
and so may not be compelled to appear before the grand jury. As discussed below, this prohibition does not
J
mean the grand jury cannot receive evidence about Senator ones’s involvement in efforts to undo
legitimate electoral results; rather, such evidence simply may not come Senator Jones and he may not be
included in any final recommendafions from the grand jury.

3 All 2022 state primary election informafion for the lieutenant governor’s race is taken from
his: I. c: 14-. m 'rrn :I‘ -. 09-. _0,.
stood for a run-off election on 21 June 2022. Bailey turned the tide and triumphed; he

now faces Senator Jones in the 8 November 2022 general election.

On 14 June 2022, well after the grand jury had begun receiving evidence from

witnesses called and examined by the District Attorney’s team of prosecutors, the District

Attorney hosted and headlined a fundraiser for Bailey. By this time, media coverage of

the grand jury proceedings was national and non-stop and the District Attorney was the

very public face of those proceedings. She also was one of the faces on the Bailey

fundraiser announcement: it prominently featured the District Attorney’s name, photo,

and title and was widely shared on Bailey’s campaign’s social media outlets. The

fundraiser appears to have been a success, earning Bailey’s campaign thousands of

dollars. It is important to note that, as counsel for the District Attorney rightly pointed

out at the hearing on the motion to disqualify, the fundraiser was entitled a “Runoff

Fundraiser” and occurred when Bailey was battling Kwanza Hall for the Democratic

nomination. But more relevant ——

and harmful —-
to the integrity of the grand jury

investigation is that the die was already cast on the other side of the political divide:

whoever won the Bailey-Hall runoff would face Senator Jones. Thus, the District Attorney

pledged her name, likeness, and office to Bailey as her candidate of choice at a time when,

if Bailey were successful (which he was), he would face Senator J ones.4

4 The District Attorney also, as a private citizen and in her personal capacity only, donated to Bailey’s
campaign. Senator Jones points to this private donafion as another basis for disqualificafion. Alone, that
is an insufficient basis for disqualification. See, e.g., Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868,
884 (2009) (“Not every campaign contribution by a litigant or attorney creates a probability of bias that
requires recusal.”); Gude v. State, 289 Ga. 46, 50 (2011) (same) (both cases involve judicial recusals,
where rules are more stringent). However, it does add to the weight of the conflict created by the more
extensive, direct, public, and job-related campaign work the District Attorney performed on behalf of
candidate Bailey.
3
 This choice --
which the District Attorney was within her rights as an elected official

to mak --
has consequences. She has bestowed her office’s imprimatur upon Senator

Jones’s opponent. And since then, she has publicly (in her pleadings) labeled Senator

Jones a “target” of the grand jury’s investigation.5 This scenario creates a plain --
and

actual and untenable --

conflictfi Any decision the District Attorney makes about Senator

Jones in connection with the grand jury investigation is necessarily infected by it. To label

Jones a target or merely a subject, to subpoena him or instead allow him to proffer, to

question him aggressively or mildly, to challenge or accept invocations of legislative

privilege or assertions of Fifth Amendment privilege, to immunize or not —-

each of these

critical investigative decisions is different for him because of the District Attorney’s

actions taken on behalf of the Senator’s electoral challenger. Perhaps the evidence shows

that there should be a tighter, stricter focus on Senator Jones than on some of the other

alternate electors.7 Yet any effort to treat him differently --

even if justified will prompt
--

5 The desiylation, borrowed from federal criminal pracu'ce, is a bit confusing in the context of this yand
jury, which has no power to bring criminal charges against anyone. It is nonetheless a potent investigan've
sigial that the District Attorney views Senator Jones (and the other alternate electors) as persons more
closely connected to the alleged electoral improprieties than other witnesses who have come before the
grand jury or who may yet do so.
6 The Court appreciates the affidavit provided by Robert Smith, General Counsel for the Prosecuting
Attorneys’ Council of Georgia, on behalf of the District Attorney. His reliance on Whitworth v. State, 275
Ga. App. 79 (2005) and Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1247 (2nd Cir. 1979) is instructive but not
persuasive. He is correct that a mere appearance of impropriety is generally not enough to support
disqualification, except, as noted in Nyquist, in the “rarest of cases.” This is one of those cases. But it is
also a case where the conflict is actual and palpable, not speculative and remote.

7 This is an
entirely plausible scenario given the Senator’s political experience and public responsibility.
That is, if the District Attorney (or the grand jury) decides that participation in the alternate elector scheme
constituted impermissible interference in the 2020 genera] elecfion, someone of the Senator’s public
stature, influence, and presumed sophistication ought to be treated differently from an alternate elector
who had no representative responsibility and who participated in the scheme merely out of partisan loyalty.

4
entirely reasonable concerns of politically motivated prosecution: is Senator Jones being

singled out because of a desire to further assist the Bailey campaign?3

Of course, the actual answer does not matter.9 It is the fact that concern about the

District Attorney’s partiality naturally, immediately, and reasonably arises in the minds

of the public, the pundits, and —-

most critical] -—
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. The Bailey

fundraiser she sponsored —-

in her official capacity --
makes that impossible when it comes

to investigating Bailey’s direct political opponent.”

J
The Court GRANTS Senator ones’s motion to disqualify the District Attorney and

her office.“ This District Attorney and her special prosecution team may no longer

invesfigate Senator Jones in the following sense: they may not subpoena him (or seek to

9 Candidate
Bailey has wielded the District Attorney’s investigation as a cudgel1n his campaign against
Jones. See, e. g.., httns: www.arc.com Oll aSES‘ ll fine-
gggrrga—candidateslfl IZXHSAGNGVXBNQPZ64AX5§OUZ1n which Baileyls quoted as saying “The only
danger to safe and secure electionsls people like Burt Jones, who come in and substitute their will for the
will of the voters and try to overturn the election.”
9 Nor is it knowable, which is another reason to separate the Disuict Attorney and her office from any
investigation into Senator Jones. An “actual” conflict does not mean that Senator Jones has definitive proof
that an invesu'gative decision was made explicitly to benefit candidate Bailey. This rarely, if ever, occurs,
absent wiretaps or leaked e—mails. The conflict is “actual” because any public criminal investigation into
Senator Jones plainly benefits candidate Bailey’s campaign, of which the District Attorney is an open, avid,
and official supporter.

1°Senator Jones also sought to disqualify Special Prosecutor Nathan Wade for a campaign donan'on he
made to Charlie Bailey’s earlier aborted campaign for Attorney General. As discussed above, a routine
campaign contribution is not enough — and this one was to a different campaign altogether, with no
connection to Senator Jones.

11
When the elected District Attorney is disqualified, so, too, is her enn'e office. McLaughlin v. Payne, 295
Ga. 609, 613 (2014).
obtain any records from him via subpoena), they may not publicly categorize him as a

subject or target (or anything else) of the grand jury’s investigation, and they may not ask

the grand jury to include any recommendations about him in their final report. This does

not mean that the District Attorney cannot gather evidence about Senator Jones’s

involvement in efforts to interfere with or undermine the 2020 general election results.

Her office may ask witnesses about the Senator’s role in the various efforts the State

Republican party undertook to call into question the legitimacy of the results of the

election. What her office may not do is make use of any such evidence to develop a case

against the Senator. That decision, as to whether any charges should be brought, and

what they should be, will be left to a different prosecutor’s office, as determined by the

Attorney General.

The Court DENIES the motion to disqualify as adopted by the other eleven

electors. There has been no showing that the District Attorney or any member of her

prosecution team is impaired by a conflict of interest vis-a-vis any of these individuals.

One of those eleven, Shawn Still, is running for the State Senate but he has offered no

evidence that the District Attorney or anyone else from her office has materially supported

either his campaign or the campaign of his opponent.”

12 Counsel for the eleven also raised the

specter of the District Attorney releasing the special purpose grand
jury’s final report on the eve of the November 2022 general election in an effort to advantage Democratic
candidates over Republican ones. Apart from offering no basis for this claim beyond unsubstantiated
hearsay, counsel’s concern displays a misunderstanding of the investigative gand jury process. The grand
jury will prepare a final report recommending action (or inaction). That report is released to the
undersigned, who in turn passes it to the Chief Judge. Only after a majority of the Superior Court bench
subsequently votes to dissolve the grand jury will the report be released to the Disuict Attorney. O.C.G.A.
§ 15-12-101(b). The undersigned will not begin this dissolution process at or near the time of the 2022
general election, should the grand jury complete its work by then.
6
 QUASHAL
The eleven other alternate electors have moved to quash their subpoenas on the

basis of their collective, blanket assertion of their Fifth Amendment privilege. This group

assertion came after the District Attorney upgraded their status from witness to target in

late June 2022 (following several alternate electors’ voluntary interviews with the District

Attorney’s team (and the Bailey fundraiser)). These eleven now characterize the

subpoenas for their testimony as “unreasonable and oppressive.” The Court disagrees.

Counsel for the eleven presented several creative legal arguments concerning the possible

(in)validity of future charges that might conceivably be brought against these alternate
electors. While intriguing, such argumentation is premature. This grand jury has no

authority to bring charges. Kenerly v. State, 311 Ga. App. 190 (2011). It is merely

invesfigating who did what after the 2020 general election and developing a perspective

about whether anyone’s post-election actions merit criminal prosecution in Fulton

County.

The eleven electors’ conduct falls well within the reach of this broad charter. It is

not unreasonable to seek their testimony and it is not oppressive to require an appearance

by way of subpoena. Nothing about that process deprives the electors of their Fifth
Amendment privilege, which they may freely assert as applicable when they appear

before the grand jury.13 Their subpoenas will not be quashed. See Bank of Nova Scotia

v. United States, 487 U.S. 250, 258—59 (1988); State v. Lampl, 296 Ga. 892, 898-99

13Counsel for the eleven revealed at the 21 July 2022 hearing that her advice to her clients will be to assert
privilege as to any and every question asked, even something as mundane as name and profession. While
this strikes the Court as a rather expansive view of what might be self-incriminating, that determination
can be made at the time of the electors’ appearances. See State v. Pauldo, 309 Ga. 130, 135 (2020)
(investigafing authorifies may ask basic biographical questions, even in the face of the assertion of Fifth
Amendment rights).
7
(2015) (target of grand jury investigation may be compelled to appear before grand jury);

O.C.G.A. § 24-5-506(a) (only persons charged with the commission of a criminal offense

are not compellable to testify).

SO ORDERED this 25th day of July 2022.

J
M f’l
C

dge obert C. I. McBurney

Superior Court of Fulton County
Rm?
Atlanta J udicml Circuit