ATLANTA – The chairman of the Georgia Republican Party cannot share lawyers with 10 other fake electors in matters related to a special grand jury investigation into possible illegal meddling in the 2020 election in the state, a judge ruled Wednesday.
The special grand jury was seated earlier this year to aid the investigation by Fulton County District Attorney Fani Willis into whether Republican former President Donald Trump and others committed crimes through their efforts to overturn his 2020 presidential election loss to Democrat Joe Biden.
Willis has made clear that she is interested in the actions of 16 Republicans who signed a certificate declaring falsely that Trump had won and also declaring themselves the state’s “duly elected and qualified” electors. Willis has said in a court filing that she notified lawyers for those 16 people that they are targets of her investigation, meaning they could face criminal charges.
Eleven of those fake electors, including Georgia Republican Party Chairman David Shafer, are represented by two lawyers paid by the party, Holly Pierson and Kimberly Debrow. Willis' team in October filed a motion seeking to disqualify the two from representing all of those clients, citing a conflict of interest.
They argued that, if Pierson and Debrow continue to represent any of the 11, “there is a serious possibility of future ethical problems concerning confidentiality of information obtained in the course of their representation thus far.”
Pierson and Debrow countered that none of their clients have committed any crimes or know of any crimes committed by the others. The district attorney's “assumption that the jointly represented nominee electors can ‘flip' on each other or otherwise provide incriminating information as to any other jointly represented elector is simply inaccurate, as well as legally insufficient,” they argued.
They also noted their clients have signed waivers attesting that they understand the implications of joint representation.
Fulton County Superior Court Judge Robert McBurney, who's overseeing the special grand jury, wrote in his order Wednesday that “the best waiver in the world cannot fix a non-waivable conflict” but said he finds “very few such conflicts” at this phase of the investigation.
Special grand juries in Georgia can gather evidence and compel testimony but cannot indict. Instead, they can recommend further action, including criminal charges. It is ultimately up to the district attorney whether to seek an indictment from a regular grand jury.
McBurney noted that if charges are brought against any of the fake electors, one of them could be called to testify against another at trial. At that point, the judge noted, Pierson and Debrow likely could not represent either one.
“But that is a remote and hypothetical scenario that does not now exist,” McBurney wrote.
Shafer, however, is an exception because of his role in establishing and convening the slate of fake electors, his “communications with other key players” in the investigation and “his role in other post-election efforts to call into question the validity” of Georgia's election results, McBurney wrote.
This “imbalance in exposure” to the investigation “makes it impractical and arguably unethical” for Pierson and Debrow to continue to represent all 11 of their clients, McBurney wrote. The pair of lawyers may represent Shafer or the other 10, but not both, he concluded.
Pierson and Debrow said in a statement that they disagree with McBurney's conclusion that Shafer is differently situated.
He didn't select replacement electors or have any “legally material" communications with other key players, they argued. The only action he took in terms of questioning the validity of the election outcome was to use legal channels to file a lawsuit contesting the election, the statement said.
“The proper inquiry under Georgia law for joint representation is not whether the jointly represented individuals are identically factually situated but, instead, whether they are aligned in their defenses,” the statement said. “Here, the undisputed evidence is that all eleven electors are so aligned, and none should be deprived of their counsel of choice.”
A spokesperson for Willis declined to comment on McBurney's ruling.
Also Wednesday, Sarasota County Circuit Judge Charles Roberts in Florida ruled during a video hearing that Michael Flynn, a retired lieutenant general who served briefly as national security adviser under Trump, must appear before the special grand jury on Dec. 8. Flynn's lawyers had argued his appeal of Roberts' earlier ruling ordering him to testify should be allowed to play out first.
“The state of Georgia does have a compelling interest in having Mr. Flynn testify as soon as possible,” Roberts said. Because Flynn lives outside Georgia, Willis' team had to get a judge where he lives to order him to appear.
Flynn’s attorneys said he will appeal this latest order as well, with lawyer Jason Greaves saying it is “conflicting with his right to have his appeal heard.”
Roberts refused to stay his order and said “the likelihood of success on appeal is slim.”
Associated Press writer Curt Anderson in St. Petersburg, Fla. contributed reporting.