Fani’s Issues:
- Transparency Troubles: DA Fani Willis faces scrutiny over her office’s handling of January 6 committee communications.
- Judicial Intervention: A judge orders Willis to submit documents for review after repeated denials of record existence.
- Trust Concerns: Questions arise about the thoroughness of the DA’s searches and potential withholding of information.
By Samuel A. Lopez – USA Herald
Fulton County District Attorney Fani Willis has been ordered to submit a batch of documents for judicial review in a public records case, following repeated violations of open records laws by her office.
As previously reported by the USA Herald, these violations stemmed from the prosecutor’s office denying the existence of records related to communications with special counsel Jack Smith and members of the now-defunct House select committee investigating the January 6 attack on the U.S. Capitol.
The issue escalated after the conservative watchdog group Judicial Watch filed a lawsuit, prompting Fulton County Superior Court Judge Robert McBurney to intervene. Late last year, Judge McBurney directed the district attorney’s office to produce the requested documents or justify their absence, leaving open the possibility of imposing attorney fees.
After months of falsely claiming no such records existed, and being fined $21,578 in attorneys’ fees and costs, Fulton County District Attorney Fani Willis and her office have now admitted the existence of these documents. The DA continues to withhold them from the nonprofit, citing exemptions under a specific section of Georgia law.
Following the default judgment, Judicial Watch requested the appointment of a special master to search the agency’s files for the documents or for the court to conduct an in-camera review. Willis vehemently opposed the appointment of a special master, describing it as “incredibly intrusive.”
“Fani Willis was caught red-handed hiding records by Judicial Watch and the court,” said Judicial Watch President Tom Fitton 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 stated it was premature to appoint a special master but acknowledged the potential necessity of such a measure in the future. Formally, the motion was held in abeyance. Most of the hearing was dedicated to discussing how to handle 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, with costs to be shared by both parties. In the interest of economy, the judge decided to initially review the files that the DA’s office is refusing to disclose.
The court first sought to determine the scope of the 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, expressed concerns about the number of documents involved. “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.”
Monroe emphasized his point further. “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.”
Additionally, the plaintiff’s attorney highlighted that the DA’s office claimed to lack the expertise to use certain cellphone-searching technology. At this point, the judge interjected, agreeing that prosecutors likely do use this technology on “every cellphone they seize from a murder defendant.”
Monroe presented two reasons for appointing a special master. First, he argued that a special master would alleviate “the horrible lack of confidence in their searching capabilities or effort” and could “provide technological support.” Second, he said that appointing a special master would help ensure compliance with the court’s order.
“There’s just no way to know that there has been compliance,” Monroe concluded.
The judge was highly sympathetic to the plaintiff’s position, even offering a detailed critique of the DA’s office’s actions in the case thus far.
“It’s kind of suspicious that you have no documents,” McBurney said to the DA’s lawyer. “First, you claim there are no documents because you didn’t search. Then, after searching, you still find no documents. Now, everything except what was given to the DA’s office is somehow exempt.”
Attorney Brad Bowman, representing the government, revealed that the DA’s office had uncovered around 212 responsive documents. He acknowledged that there were two instances where documents appeared to be incomplete“based on what was provided.”
Bowman explained that email accounts and physical files were searched. He added that cellphones were also searched but was unsure if the proprietary technology, Cellebrite, had been used. He noted that Cellebrite would be employed if necessary.
“We do oppose the special master request,” Bowman stated.
The District Attorney’s office has agreed to submit the documents to the court, though they maintained that the records should remain confidential and not be disclosed to the public. This response seemed to satisfy the judge, at least temporarily.
The judge announced plans to issue an order soon, which would establish deadlines for the DA’s office to meet and require them to submit a comprehensive affidavit detailing the search process, along with an appendix listing the specific search terms employed.
However, the court expects some preliminary motion practice between the parties to hash out the exact contents of the affidavit and appendix. While the plaintiffs succeeded in securing an in-camera review, they proceeded to express doubts about whether this remedy would be adequate.
“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 given their track record.”
The judge signaled his sympathy for these concerns but made clear that the court was not ready to impose more invasive measures at this time.
“You should continue to be the skeptic and voice that skepticism,” McBurney advised, holding out the idea of appointing a special master in the future. “I remain open to that concept. This is a graduated approach. If I review the 212 pages and find them lacking, and it’s evident that there must be other documents 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, so I won’t do that lightly… No options are off the table.”
For a deeper dive into the law without the jargon, join my Patreon community, Legal Insights and Strategies by Samuel Lopez, for exclusive analyses, templates, and insider tips.
