Fani Willis Skips Hearing Amid Subpoena Challenge: What Happens Now

Fulton County District Attorney Fani Willis skipped a hearing on Friday before a special committee of the Georgia state Senate examining misconduct allegations leveled against the prosecutor.

The Republican-led committee formed this year is specifically delving into accusations of “various forms of misconduct” against Willis regarding her prosecution of former President Donald Trump, who was charged along with 18 allies, accused of attempting to overturn Georgia’s 2020 presidential election results.

Willis’ role in the case has been questioned after it was revealed that she had a romantic affair with the special prosecutor she hired to lead the case against Trump. The former president’s team has sought to dismiss the case on accusations that Willis’ relationship with the prosecutor, Nathan Wade, formed a conflict of interest, although Fulton County Superior Court Judge Scott McAfee ruled in March that Willis was allowed to remain on the case as long as Wade stepped aside.

Trump and his co-defendants have appealed that ruling by McAfee, and the Georgia Court of Appeals is scheduled to hear arguments on the case in December.

Willis was subpoenaed by the Georgia state Senate special committee to testify at a Friday hearing.

In addition to testifying before the state Senate, Willis’ subpoena orders her to produce documents related to the hiring and payment of Wade. State lawmakers also seek copies of text messages between the prosecutors, regardless of the subject. Willis said in a court filing earlier this week that producing such information would place an “immense” burden on her office and that the “broad demands” of the subpoena “are profoundly harmful to the Prosecution.”

Willis did not attend Friday’s hearing and is actively challenging the legality of the subpoena, although a court did not issue a ruling on her challenge before Friday. The Associated Press (AP) reported that the Senate committee instead heard from an attorney of the legislative counsel and a former secretary of the state Senate, which both said that the state lawmakers have the power to use subpoenas to compel testimony and documents from witnesses as part of its investigation.

As former federal prosecutor Neama Rahmani told Newsweek Friday, the legality questions around Willis’ subpoena will have to be decided by the Georgia courts, “but these sorts of legislative subpoenas are generally void because of the separation of powers.”

“The legislature passes laws and the executive enforces them,” Rahmani, president of West Coast Trial Lawyers, said in an email. “The Georgia State Senate can’t tell a District Attorney how to prosecute cases.”

Even if the subpoena is found by a court to be valid, Rahmani added, the Georgia state Senate “can’t enforce it on its own.”

“They would need a prosecutor like the Georgia Attorney General to compel attendance or prosecute Willis for failure to do so,” he added. “Willis can affirmatively file a motion to quash the subpoena, which she has, or she could raise the separation of powers defense in any action to enforce the subpoena.”

Legal analyst and attorney Dave Aronberg echoed to Newsweek on Friday that Willis “is allowed to seek judicial intervention in this matter” as she challenges the subpoena.

“If she ignores the subpoena completely,” Aronberg noted, “there could be consequences … But not yet.”

According to AP, the Georgia state Senate committee chairman, state Senator Bill Cowsert, said during Friday’s hearing that the panel has hired outside legal counsel to assist in enforcing the subpoena against Willis.

As Trump’s election subversion case stalls in court, McAfee dismissed two charges against the former president on Thursday, ruling that the Fulton County District Attorney’s Office did not have the authority to bring charges that concern documents filed in federal court. The judge did allow eight other charges against Trump to proceed—down from the 13 that he originally faced.