ATLANTA — Fulton County District Attorney Fani Willis is taking an unusually aggressive, hands-on approach to her office’s investigation into Donald Trump, personally selecting members of a special grand jury and sitting in on questioning while preparing to wage legal war against all-but-certain challenges from the former president and recalcitrant witnesses.
“I feel great about it actually,” Willis told Yahoo News when asked about the selection of a special grand jury that began hearing testimony last week. “So I’m a trial lawyer. And so often, my trial strategy is always pick a diverse jury. I don’t want all Black people. I don’t want all white people. I don’t want all young people.
“If you put that mix of people on there, they’ll keep each other honest,” she added. “This [grand] jury looks like the diversity of my county. And so that’s already a good, smart start. … It’s an inquisitive group. It’s a group that takes the responsibility seriously, and I think Fulton County is in good hands.”
Willis spoke freely in her office for over an hour last Friday, the day after Georgia Secretary of State Brad Raffensperger spent five hours testifying before the grand jury and just days before the U.S. House’s Jan. 6 committee begins televised primetime hearings that are expected to once again put Trump’s post-election conduct in the national spotlight.
In the interview, Willis expressed confidence about the direction of her investigation and offered an admittedly optimistic timetable that could lead to a decision on indicting the former president by this fall. She also brushed aside any concerns about expected challenges to the investigation from Trump’s lawyers and Republican state legislators, some of whom have balked at cooperating.
“That’s nothing for prosecutors,” she said when asked about the prospect that there could be challenges to her subpoenas. “Nobody ever wants to come to our party.”
Willis also offered her most full-throated defense yet of her decision to take on the Trump case — a move that has generated criticism from both Trump loyalists and some community leaders in Fulton County who have expressed concerns that it is a diversion from more pressing issues, notably prosecuting violent crime. An elected Democrat who last year took office as the first Black woman to head the district attorney’s office, Willis, 50, cast the investigation as an essential part of a broader national effort to defend the sanctity of voting rights amid Trump’s attempts to sabotage the results of a democratic election.
“I did not choose this. I did not choose for Donald Trump to be on my plate,” she said. But once she discovered, just as she was taking office last year, that Raffensperger was sitting in his Fulton County home when Trump called him and implored him to “find” just enough votes to flip the election results, Willis felt she had no choice. Her father, a former Black Panther turned trial lawyer, had grown up “in the movement” and “since I was a very little bitty girl, you get dragged to the polls.”
Former President Donald Trump.
Former President Donald Trump at a rally in Florence, S.C., on March 12. (Meg Kinnard/AP)
“So you understand very, very early on, voting is such an intrinsic right,” she said. “And so I understand how important the infraction on someone’s right to vote is. So I do get the significance.”
While those comments appear to echo the voting rights messaging of many in her party, Willis is a far cry from the progressive prosecutors who have taken office in many other big cities. Instead, she has a reputation as a tough prosecutor (“a force of nature,” one colleague said of her) who has shown no compunction about bringing controversial indictments that have roiled her community. These include a 2014 racketeering case against Black teachers accused of cheating on students’ test scores (when she was a top deputy in the district attorney’s office) or more recent charges against popular local rap stars linked to violent gang activity.
In plotting her strategy for the Trump investigation, Willis is relying on the advice of John Floyd, an acknowledged expert on Georgia’s expansive racketeering law who has helped guide her on previous cases. Once Floyd tutored her on the broad reach of the racketeering law, “I understood what a beautiful tool it was,” Willis said, and “what a great way it was to allow a jury to get to see a whole story.”
It is a law that, experts say, could allow Willis to bring a much broader conspiracy case that goes well beyond the former president’s phone call to Raffensperger to include a wide array of actors, including Trump’s lead lawyer, Rudy Giuliani, who gave demonstrably false testimony before two legislative committees. It could also include GOP state lawmakers who participated in an effort to name an alternative slate of Georgia electors pledged to Trump despite Joe Biden’s narrow victory in the state.
Fani Willis at a Fulton County Superior Court hearing.
Willis at a hearing in 2013 for educators facing charges alleging a conspiracy of cheating on standardized tests. (David Tulis/AP)
But in doing so, Willis is already running into threats of legal challenges. For example, Willis’s prosecutors recently notified some Republican state legislators to expect subpoenas, potentially regarding their presence at the closed-door meeting at the state Capitol on Dec. 14, 2020, during which the alternative state of electors pledged to Trump was selected.
But as Yahoo News reported on May 26, GOP leaders of the General Assembly have hired an outside counsel who has already questioned Willis’s authority to subpoena lawmakers on the grounds of state legislative immunity, which is similar to the U.S. Congress’s “speech and debate” clause. Willis brushed aside the objection during the interview, saying, “We’ll deal with that as well.”
Any challenges to Willis’s subpoenas, she noted, would be litigated before Fulton County Superior Court Judge Robert McBurney, who is presiding over the grand jury. But if she prevails, and state legislators still resist her subpoenas, she said, she has a standard playbook: She will get a “material witness” warrant commanding them to comply or face arrest. It’s “just what you do,” she said. “I’ve had a witness arrested before because they ignore my subpoena. And you do not expect to have to do it. But I will.”
Asked for comment about her remarks, a spokesman for Georgia House Speaker David Ralston emailed: “I appreciate the inquiry, but we have no comment on the matter.” The office of Butch Miller, Georgia Senate president pro tempore, did not respond.
More crucially, Trump’s legal team is expected to challenge the authority of Willis, as a state prosecutor, to investigate or charge the president at all. It is widely expected that Trump’s lawyers will file to remove the case to federal court, arguing that under the Supremacy Clause of the Constitution, Trump is immune from state prosecution for any action that he took in his capacity as president. Willis and her team would move to have the case remanded to state court, arguing that pressuring a state official to “find”more votes in an effort to overturn a demonstrably fair election falls well outside the scope of presidential duty. But there are no guarantees.
Fulton County Superior Court Judge Robert McBurney swears in potential jurors on May 2. (Ben Gray/AP)
“This may be one of the hardest legal issues in the case,” said Norm Eisen, a senior fellow at the Brookings Institution who has closely monitored Willis’s probe. “But it should fail because Trump’s attempt to overthrow the election is so far removed from any official responsibility.” Even if she loses that fight, however, Willis could still prosecute the case in federal court. She told Yahoo News that if necessary she would “contract a special prosecutor” with federal trial experience to assist in the prosecution.
Still, Willis is expressing confidence that she can wrap up the probe and make a decision on an indictment potentially as early as this fall. “I think we could be in and out 90 days,” she said about the work of the special grand jury. “I don’t expect that everything will go perfect, because that’s just not the way life works. And so it may take a little longer. … In a perfect world, I think we can finish in July, August.”
At that point, the special grand jury will prepare a report on its findings and make a recommendation on an indictment. Willis will then make her decision about charging the ex-president and any conspirators — and, if she proceeds, bring the case to a separate regular grand jury for an indictment.
Does the fact that there’s a November election factor into when she makes her decision about charging Trump? “No, not at all,” she said. “It’s not guiding me at all.” She won’t, she says, bring an indictment once early voting in Georgia starts in mid-October. But, she adds, she has plenty of time before that — “and after.”