Georgia on Their Minds

Photo: Jacquelyn Martin / AP

The state of Georgia is turning out to be, as Marjorie Taylor Green famously put it, a “peach tree dish” of nefarious election interference. That point was brought home by three separate legal developments, all of which have national implications. Let’s review.

Rudy Giuliani Is Now Officially a Target of Investigation

Fresh off a court order to appear before the grand jury in Atlanta investigating election interference in Georgia, Rudy Giuliani received more bad news last night. District Attorney Fani Willis’s office sent him what’s known as a “target letter” indicating that he is not just a witness but also a likely defendant in the case under investigation. Similar letters had been sent to state GOP officials who had participated in the fraudulent elector slate scheme, in which a group of Republicans falsely attested that they were the duly appointed electors for Georgia in the 2020 presidential election. 

Such a target letter is more of a courtesy than a legal requirement. It’s a way for the prosecutor’s office to inform defendants that they might consider exercising their right against self-incrimination. The notice comes at an interesting time for Giuliani, who is set to appear this week before the grand jury. His lawyers are likely advising him to follow in the former president’s path and plead the Fifth Amendment in response to questioning, given his legal peril.

As a refresher, Giuliani was at the heart of the efforts in Georgia to overturn the election by, among other things, appearing before members of the Georgia legislature and making false representations about election fraud that had long been debunked. It remains to be seen what other facts the district attorney has unearthed that might connect Giuliani further. A big question will be whether he was involved in efforts to organize the fake electors in the state (something that seems likely from the evidence to date) and whether he participated in plans to use the authority of the Justice Department improperly to influence Georgia state legislators, as former DOJ official Jeffrey Clark had proposed.

Giuliani may try to avoid the spectacle of him pleading the Fifth Amendment by claiming that his actions and statements are protected under attorney-client or executive privilege, which would set off a round of motions and hearings, especially around the question of whether the privilege doesn’t apply due to the crime-fraud exception. He may also have a hard time arguing that things he said in any public forum or outside the presence of his client Donald Trump are in any way privileged.

Sidney Powell’s Team Copied Sensitive Voter Data in Georgia

Turning to another member of “Team Crazy,” The Washington Post dropped a bombshell report yesterday that Sidney Powell, the one-time “kraken” election conspiracy peddling lawyer allied with the Trump campaign, hired a digital forensics firm to access voter data from machines in three different battleground states, including Georgia. The firm, SullivanStrickler, is based in Atlanta and kept records of its interaction with Powell and her team, including email communications and payments related to the voter data access. The records were discovered as part of a lawsuit brought in Georgia by plaintiffs seeking to protect election integrity. “The breach is way beyond what we thought,” said David D. Cross, a lawyer for the plaintiffs. “The scope of it is mind-blowing.”

While the company’s access to election machines was authorized by a court in Michigan as part of an election controversy around voting machines there, no such court authority was provided in Georgia, and an application for similar access was affirmatively rejected in Nevada. Powell and her team nevertheless worked quietly to gain access to voting machine equipment. Specifically, in Coffee County, Georgia, the Post reported, Powell’s forensics team imaged every hard drive of every piece of equipment and also scanned ballots. 

The team’s representative claimed the elections committee had given them permission to do this. Former local elections official Misty Hampton stated earlier this year that she had allowed outsiders into her office in the hope that they could identify machine vulnerabilities and show the “election was not done true and correct.” Hampton resigned last year, however, after falsifying time sheets. Her successor claimed the county’s server was replaced out of concern it had been compromised. He was also troubled after finding a business card for “Logan of Cyber Ninjas” on Hampton’s desk in April of 2021, referring to the shady group that oversaw the circus of an election audit in Arizona while trading in wild and unfounded conspiracies around election fraud. Her successor reported the card to state authorities but did not hear back from them.

The data taken by Powell’s team included copies of nearly all components of the county voting system, including the central tabulation server and a precinct tabulator, according to a directory of file names reviewed by the Post. The fear is that those with political motives and this kind of easy access to the machines could easily exploit voting equipment vulnerabilities. This is especially true where, as here, the access was not even discovered for over a year. 

Sen. Lindsey Graham Has Been Ordered to Appear in Georgia

The good senator from South Carolina, who once famously tweeted that if they nominated Donald Trump for president it would destroy them, is now one of his biggest defenders—so much that he went to bat for Trump in the 2020 election and even made some curious phone calls to Georgia Secretary of State Brad Raffensperger on Trump’s behalf. Unlike the infamous “find 11,780 votes” call by Trump that was recorded, what took place on the calls between Graham and Raffensperger isn’t clear. At the time, Raffensberger said that Graham had asked if he had the power to reject absentee ballots, a question Raffensberger interpreted as a suggestion to toss out valid votes.

That sounds a lot like election interference, but Graham insists he was within his rights as a senator to make inquiries about election integrity. So when Graham received a subpoena from Fani Willis’s grand jury to appear, he promptly moved in federal court to quash it on grounds it would violate the U.S. Constitution’s Speech and Debate clause, which requires that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.” There’s also the question of so-called “sovereign immunity” which shields certain officials from suit in some proceedings, and the “high-ranking official” doctrine which again shields high level officials from having to deal with court cases absent “extraordinary” circumstances—an idea meant to keep the courts from vexing Congress or the White House through petty litigation and to maintain the branches of government power properly separated.

The federal judge hearing the case, Judge Leigh Martin May, was rather unimpressed with the idea that Sen. Graham could merely assert that he had a legislative purpose to the calls and then claim absolute immunity from being compelled to testify about potentially criminal matters. But she was also annoyed that the factual record was so sparse and undeveloped in the case, making it hard for her to determine whether the overriding purpose of the calls was legislative in nature. When she pressed about whether the dispute over what was said in the calls might mean Graham himself was a potential target of the investigation, the DA’s office demurred, saying that Graham could provide information whether the call was in some way coordinated with other parties, but that his testimony is “not necessarily” to show that the call itself was a criminal act.

In the end, the judge ruled against Graham on his motion to quash. “[T]he Court finds that the District Attorney has shown extraordinary circumstances and a special need for Senator Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2020 elections,” Judge May wrote in a 22-page opinion. “Senator Graham has unique personal knowledge about the substance and circumstances of the phone calls with Georgia election officials, as well as the logistics of setting them up and his actions afterward,” she noted. “And though other Georgia election officials were allegedly present on these calls and have made public statements about the substance of those conversations, Senator Graham has largely (and indeed publicly) disputed their characterizations of the nature of the calls and what was said and implied. Accordingly, Senator Graham’s potential testimony on these issues … are unique to Senator Graham.”

The ruling sets up an immediate appeal to the 11th Circuit, which tends to be quite conservative. “Although the district court acknowledged that Speech or Debate may protect some of Senator Graham’s activities, she nevertheless ignored the constitutional text and binding Supreme Court precedent, so Senator Graham plans to appeal to the 11th Circuit,” Sen. Graham’s office said in a statement.

At the end of the day, even if he is required to testify, Graham may not wind up providing any useful information that isn’t already known, or he might even plead the Fifth like Donald Trump recently did. But his efforts to fight the subpoena based upon his position and privileges as a senator only underscores the idea that people like Graham and Trump consider themselves above the law and shielded from processes and requirements ordinary Americans would have to obey. It is a risky strategy because that sense of unfairness and privilege might continue to grow and possibly turn even more Americans against the GOP’s leaders.