Fulton County District Attorney Fani Willis arrives during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta (AP Photo/Alex Slitz, Pool).
Fulton County District Attorney Fani Willis must turn over a tranche of documents for a judge’s inspection in a public records case where her office was found to have repeatedly violated open records laws.
As Law&Crime previously reported, those violations occurred when the prosecutor’s office, in response to open records requests, denied having any documents showing any communications with special counsel Jack Smith or members of the since-defunct House select committee investigating the Jan. 6 attack on the U.S. Capitol.
Late last year, in response to a lawsuit filed by the conservative government watchdog group Judicial Watch, Fulton County Superior Court Judge Robert McBurney ordered the district attorney’s office to provide the requested documents and/or explain their continued absence, leaving open the possibility of attorney fees.
Now, after falsely claiming any such records exist for months, and after being assessed a fine of $21,578 in attorneys’ fees and costs, Willis and her office admit there are such documents. The DA is continuing to withhold those documents from the nonprofit on the basis that “they are exempt pursuant” to a section of Georgia law.
Following the default judgment, Judicial Watch asked for a special master to scour the agency’s files for the documents or for the court to conduct an in camera inspection of the documents. Willis, in turn fiercely opposed a special master as “incredibly intrusive.”
“Fani Willis was caught red-handed hiding records by Judicial Watch and the court,” Judicial Watch President Tom Fitton said in a statement. “We’re asking the court to appoint a special master because Willis simply can’t be trusted to come clean.”
During a Friday hearing, McBurney said it was simply far too soon to appoint a special master — but made clear he would not discount the necessity of such a move in the future. Formally, that motion was held in abeyance. The majority of the hearing hashed out how to deal with the forthcoming in camera review of the documents in question.
“I can appoint a special master,” McBurney said — but noted that it would be an expensive undertaking that would be paid for by both sides. And in the interest of economy, the judge said he would take the first stab at surveying the files the DA’s office is refusing to turn over.
The court first sought to determine the general universe of documents.
“If it’s 55 pages, we don’t need a special master, I can do that,” McBurney said. “If it’s 5,550 pages, I’m not looking at 5,500 pages. Well, I will, but I’ll get that done over the next four years. And that’s not helpful to anyone.”
Attorney John Monroe, representing Judicial Watch, said there were entirely different concerns about the number of documents at stake.
“Our big concern is we don’t have any confidence in the universe of documents,” Monroe said. “They responded without doing a search. And then they didn’t even do a search until after the complaint was filed. They don’t have any records of what they searched. They say they didn’t search even the cellphones of the six people that they knew were involved in some communication or dialogue or something with the January 6th Committee.”
The nonprofit’s attorney then put a fine point on his argument.
“And then, when you ordered them to do, I think, what would have amounted to, like, the fifth search, when they previously said they didn’t have any records at all — privileged or otherwise — now they say they have some records that are privileged. It’s just very difficult to have any confidence.”
On top of that, the plaintiff’s attorney added, the DA’s office claims they lack the expertise to use a certain piece of property cellphone-searching technology. On this point, the judge jumped in to agree the prosecutors presumably do, in fact, use that specific technology on “every cellphone they seize from a murder defendant.”
Monroe went on to say two reasons support the appointment of a special master. First, he said a special master would alleviate “the horrible lack of confidence in their searching capabilities or effort that they’re putting into it” and could “provide technological support.” Second, he said appointing a special master would help to monitor compliance with the court’s order ”
“There’s just no way to know that there has been compliance,” Monroe summed up.
More Law&Crime coverage: ‘This court disagrees’: Judge strongly rejects ‘absurd’ and legally baseless effort by Fani Willis to avoid subpoenas for documents and testimony about Trump RICO prosecution
The judge, for his part, was highly sympathetic to the plaintiff’s position — even going so far as to offer a detailed criticism of the way the DA’s office has acted in the case up to this point.
“It’s kind of suspicious that you have no documents,” McBurney said — addressing the DA’s lawyer. “And then no documents because we didn’t search. And we did search and we have no documents. Then everything except what he gave the DA’s office is somehow excepted.”
Attorney Brad Bowman, representing the government, said the DA’s office had uncovered around 212 responsive documents — and conceded there were two instances of documents he thought seemed to be missing something “based on what was provided.”
The DA’s lawyer went on to explain that email accounts were searched, as well as physical files. He added that cellphones were also searched but did not know whether the aforementioned proprietary technology was used to search the phones — and he said that technology, Cellebrite, would be employed if needed.
“We do oppose the special master request,” Bowman said.
The DA’s office now, however, was willing to turn the documents over to the court — but insisted they should not be publicly released.
That answer more or less convinced the judge — for now at least.
The judge said he would issue an order in the near future containing deadlines for the DA’s office to comply. That order, the court said, would also direct the DA’s office to provide a detailed affidavit about how the search was conducted — and an appendix with the search terms used to conduct the search. Before any of that, however, the court anticipated some back-and-forth motions practice about what the affidavit and the appendix would contain.
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The plaintiffs, winning on their request for an in camera review, went on to voice concerns about the sufficiency of that relief.
“I’m troubled by the fact that we’re still leaving the DA’s office to their own devices on how to do the search,” Monroe said. “Especially with the track record.”
The judge signaled, quite volubly, that he was sympathetic to those concerns — but made clear the court was not ready to subject the DA’s office to more invasive measures at present.
“You should continue to be the skeptic and voice that skepticism,” McBurney advised — holding out the idea of a special master down the line. “I remain open to that concept, this is a graduated approach. If I look at the 212 pages and am grossly underwhelmed and it’s just patent that there’s got to be other things out there. Then, we’re done with the DA telling the county attorney: ‘Don’t worry, I got this.’ We’ll bring in the professionals. That will be messy. And, so, I won’t do that lightly … No options are off the table.”
