Published by The Lawfare Institute
in Cooperation With
One of the interesting features of being Lawfare’s correspondent assigned to the very local Fulton County special purpose grand jury, requested by a local prosecutor under state law, is how local it seems not to be. Since taking on this very local beat, I have covered hearings in Texas, Colorado, New Mexico, Florida, and the District of Columbia.
Today, I’m in Pickens, South Carolina, a town known mostly as a place you might drive through on your way to Greenville, South Carolina. The courthouse here is a quaint brick building just off Main Street, which offers a handful of antique shops, a local grocer’s, a McDonald’s, and the coffee shop where I hunkered down to write this dispatch. You look down the street and you can almost see Marisa Tomei’s character from “My Cousin Vinny,” complaining about the quality of the Chinese food.
I am in this sleepy Southern town because that’s where the Fulton County special grand jury matter today is being litigated. And it’s being litigated here because Pickens is where former White House Chief of Staff Mark Meadows resides—or, rather, where he says he resides. Where Meadows actually lives is a bit of a complicated question, but that subject isn’t on today’s agenda.
While state jurisdiction to subpoena a witness from a different state usually ends at the state’s borders, both South Carolina and Georgia have adopted versions of the Uniform Act to Compel the Appearance of Witnesses from Without the State in Criminal Proceedings, which establishes a process to compel the testimony of out-of-state witnesses in criminal proceedings.
Under the applicable law in South Carolina, SC Code s. 19-9-30, a witness who resides in South Carolina can be compelled to testify in Georgia if a local judge issues an order directing him or her to do so. The statutory provisions require the judge to find that the witness is “material” and “necessary” to the out-of-state grand jury’s investigation, and that a summons to appear in another state will not cause “undue hardship” on the witness.
Meadows, for his part, has put forward several arguments to avoid testifying before the Georgia special purpose grand jury.
In a filing earlier this week, Meadows echoed arguments made by other would-be Fulton County witnesses. As Jack Picki Deason similarly and successfully argued in Texas, Meadows claimed that his subpoena is moot—basically, that he is no longer required to comply with the subpoena because the deadline for his testimony has expired. And, like Deason, Lindsey Graham, Jenna Ellis, and Brian Kemp before him, he contended that the special purpose grand jury’s investigation is a civil inquiry. As such, Meadows asserted, prosecutors cannot compel his appearance under the Uniform Act, which applies only to criminal proceedings. And, finally, Meadows raised executive privilege, a doctrine that can shield officials from testifying about matters related to the executive’s official deliberations and communications.
But, only hours ahead of today’s hearing, Meadows added a new argument to the mix: Testifying before the special purpose grand jury would violate his right to privacy under the South Carolina Constitution. In a memorandum of law filed this morning, Meadows claimed that Georgia special purpose grand juries fail to observe the more protective grand jury secrecy rules provided for in South Carolina. Pointing to the fact that the Fulton special purpose grand jury can file a public report, Meadows argued that his personal right to privacy under the state constitution would be violated if he is forced to testify.
Now, as I arrive a few minutes before 9 a.m., several groups of attorneys mill about Courtroom 1. Among a huddle of men in suits, I spot Will Wooten, a deputy district attorney for the Fulton County district attorney’s office.
Normally, Wooten or another member of the Fulton County election probe team would argue matters on behalf of the district attorney. But today, Wooten is here to serve as a witness. As you’ll recall from when Jenna Ellis had a similar out-of-state witness hearing in Colorado, the Fulton County prosecutors are the witnesses, and the local prosecutors argue the matter.
So on behalf of Fulton County prosecutors and the state of South Carolina, Walter Wilkins, the solicitor for the 13th Judicial Circuit of South Carolina, will argue that Judge Edward Miller should order Meadows to appear before the Georgia special purpose grand jury. And he will use his Fulton County colleague as a foil.
Amid another cluster of suits stands James Bannister, the South Carolina criminal defense attorney whom Meadows has hired to represent him to fight the Fulton County subpoena in South Carolina.
As the minutes tick well past the scheduled 9:00 a.m. start time, the attorneys chatter about baseball and the weather and various last-minute hearing matters. Then, around 9:30 a.m., the court bailiff finally shouts, “All rise!” and Judge Miller enters the courtroom. He nods toward Wilkins, who jumps up to announce that the state of South Carolina will begin by calling Wooten as a witness.
At that, Wooten strides to the witness box. After he’s sworn in, Wilkins begins with questions about the grand jury process in Georgia. Wooten explains that Georgia law provides for the establishment of both regular grand juries and special purpose grand juries. Special purpose grand juries, he says, can be impaneled to investigate either civil or criminal matters. In the Fulton County probe, the special purpose grand jury was impaneled to investigate criminal interference in the 2020 presidential election in Georgia.
Then Wilkins peppers Wooten with questions about the “materiality” and “necessity” of Meadows’s testimony. In response, Wooten sets out several reasons why the district attorney is interested in Meadows’s testimony. First, he notes Meadows’s knowledge related to his position as chief of staff to former President Donald Trump, especially during the period before and after the 2020 election. Second, he says, Meadows attended a meeting at the White House that occurred on Dec. 21, 2020, along with President Trump and several members of Congress. “The subject matter of that meeting, we believe, was related to the certification of electoral college votes for various states, including Georgia,” he says.
Moving on to a third area of interest, Wooten points out that Meadows visited Cobb County, Georgia, on Dec. 22, 2020. “We’ve received information that the witness visited Cobb County during a signature match audit that was going on there against some of the absentee ballots that were submitted in Cobb County,” he says. The fourth category involves several emails Meadows sent to Department of Justice officials, all of which dealt with matters related to the special purpose grand jury’s investigation. “We reviewed a selection of some of those emails that were made public, including by the January 6 Committee and several other investigative bodies,” he says.
Briefly, Wooten mentions the fifth category: the Jan. 2, 2020, phone call that former President Trump made to Georgia Secretary of State Brad Raffensperger. Then he turns to the sixth and final category, which he describes as Meadows’s “unique knowledge” of communications and coordination among the other five areas.
Next, Wilkins asks Wooten about the affidavit he provided in advance of the hearing, in which noted that the special purpose grand jury could accommodate Meadows’s testimony past the originally requested appearance date of Sept. 27.
Then Wilkins quizzes Wooten about the “undue hardship” caused if Meadows is forced to testify. Wooten notes that Meadows’s testimony is expected to take less than a day and that Atlanta is only a few hours’ drive from Pickens. “I made the drive up from Atlanta this morning,” he remarks. This hearing, he seems to be saying, does not present an undue hardship.
Finally, Wilkins turns to questions about the “criminal” nature of the Fulton County special purpose grand jury. While acknowledging that the Texas Court of Criminal Appeals has previously expressed the view that the grand jury is a civil body, Wooten points out that the Georgia special purpose grand jury’s supervising judge, Judge Robert McBurney, has explicitly held that the special purpose grand jury is no such thing.
Now Meadows’s counsel, Bannister, strides to the lectern to cross-examine Wooten. To start, he attempts to argue that the subpoena is moot. He prods Wooten to admit that the material witness certificate issued by McBurney does not impose a continuing obligation on Meadows to appear before the special purpose grand jury; instead, he points out, the certificate specifies only that Meadows would be required to appear on Sept. 27.
Bannister next tries to press Wooten on the possible political motivations of the Fulton County district attorney. He asks about an order issued by McBurney in July, in which he disqualified the Fulton County district attorney, Fani Willis, from further investigation of Georgia lieutenant governor nominee Burt Jones. McBurney found that Willis’s public support of Jones’s political opponent, Democrat Charlie Bailey, created a conflict that warranted disqualification.
As Bannister continues down this line of questioning, Judge Miller interjects. “Mr. Bannister, this is getting far afield from the purpose of this hearing,” he says with annoyance. “This is not a political hearing."
Moving on, Bannister turns to executive privilege. He notes that there is an ongoing subpoena battle between Meadows and the Jan. 6 committee in federal district court, in which Meadows has raised similar executive privilege arguments. Why not wait until the district court decides in that case, Bannister asks.
In response, Wooten explains that, traditionally, grand jury witnesses raise issues of executive privilege on a question-by-question basis on the day of their scheduled testimony. Thus, if Meadows testifies before the special purpose grand jury, he would be able to raise issues of privilege with his counsel and Judge McBurney.
Bannister now pivots to the due process protections provided to witnesses who appear before the special purpose grand jury. He asks Wooten to confirm that witnesses before a special purpose grand jury are not permitted to have counsel present in the grand jury room during their testimony, and that potential targets have no right to cross-examine witnesses. Remaining even-keeled, Wooten responds that, as in traditional grand jury proceedings, counsel for witnesses do not enter the grand jury room; nor do putative targets of the investigation typically have rights to cross-examine witnesses.
Finally, after Bannister asks Wooten to confirm that the special purpose grand jury cannot issue indictments, he concludes cross-examination. Wooten, looking relieved, trots back to his seat in the gallery.
Judge Miller directs the parties to closing arguments. Wilkins briefly jumps up to say that he stands by Wooten’s testimony. Wilkins argues that Wooten sufficiently established the elements required for the statute: Meadows is a “material” and “necessary” witness, and compelling his testimony would not cause “undue hardship.”
Then Bannister is up to summarize Meadows’s closing arguments. First, he says, the subpoena is moot because the material witness certificate issued by McBurney specified only that Meadows would be required to appear Sept. 27—and that date has since long passed.
Next, he reiterates that the special purpose grand jury is conducting a civil, not criminal, investigation. At this, Judge Miller interjects, noting that Judge McBurney has held that the investigation is indeed a criminal proceeding. “The question is, do I give full faith and credit to our sister states?” he asks.
In response, Bannister argues that Georgia’s special purpose grand jury investigation is the “antithesis” of the kind of grand jury envisioned by the South Carolina legislature when it enacted the Uniform Act to Compel the Attendance of Witnesses from Without the State. Georgia’s special purpose grand juries, he complains, offer fewer protections and privacy. As an example, he points to the fact that filings related to the work of the special purpose grand jury are generally available to the public even prior to indictment.
Finally, Bannister closes on executive privilege, suggesting that each area of inquiry covered by the subpoena would be protected by the privilege. “He can’t be a material witness, because he can’t offer any testimony,” Bannister claims. Reminding Judge Miller that Meadows’s executive privilege claims are currently pending in federal district court, Bannister suggests that the court should refrain from issuing an order in this matter until the district court renders a decision. “This court should be guided by what comes out of that federal decision in federal court,” he tells Miller.
But Miller has other ideas, and they don’t involve deferring to any federal court. He, rather, is prepared to issue an order. Right now. “I’m going to find that the witness is material and necessary to the investigation, and the state of Georgia is ensuring that it will not cause undue hardship on him,” he announces. In other words: Meadows must testify before the Fulton County special purpose grand jury.
And with that, Miller adjourns the hearing.