Published by The Lawfare Institute
in Cooperation With
Editor’s note: The following is a dispatch from Aug. 16, the latest episode in our series on the Fulton County criminal probe into interference in Georgia’s 2020 presidential elections. You can find more of our coverage here and here.
Fulton County District Attorney Fani Willis might not follow Donald Trump to the gates of Hell, but her investigation has followed one of his aides as far as Colorado.
It’s been a particularly combative two weeks in the Fulton County criminal probe, as a pack of high-profile witnesses have sought to fight off subpoenas for grand jury testimony. Last week, Rudy Giuliani’s legal team appeared in Fulton County superior court to argue that the former mayor of New York is too sick to testify. And, barely 24 hours later, Lindsey Graham’s legal representatives appeared before a federal judge in Georgia to argue that the senator from South Carolina couldn’t possibly comply with the subpoena.
Now, more than 1,500 miles away from Atlanta, former Trump campaign lawyer Jenna Ellis hopes she’ll have better luck in the Rocky Mountains. Like both Graham and Giuliani, Ellis’s battle with the Fulton County district attorney began back in July, when she was subpoenaed to appear before the special purpose grand jury investigating Trump’s efforts to overturn the presidential election vote in Georgia. Ellis has not yet been designated a target of the investigation, but the subpoena seems to focus on her role in developing legal strategy as a part of the “multi-state, coordinated plan by the Trump campaign to influence the results of the November 2020 election.”
The matter is being litigated in Colorado because that’s where Ellis resides. While jurisdiction to subpoena a witness typically ends at a state’s borders, both Georgia and Colorado have adopted the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. Under the applicable Colorado law, C.R.S.A. § 16-9-202, a witness located in Colorado can be compelled to testify out of state if a local judge issues a summons for him or her to appear. 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 out of state will not cause undue hardship on the witness.
The multi-state nature of the legal issues means that today’s hearing is “hybrid”: The Colorado folks appear in person at the Larimer County Justice Center, while the rest of us join virtually via the Webex video conferencing system. Appearing in person is Dawn Downs, the deputy district attorney for Larimer County, Colorado. On behalf of the Fulton County prosecutors and the state of Colorado, Downs will argue that Judge Gregory Lammons should issue a summons to compel Ellis to travel to Georgia for her appearance before the special purpose grand jury.
On the opposite side of the courtroom sits Michael Melito, the Denver-based criminal defense attorney whom Ellis hired to fight the grand jury subpoena in Colorado. His client, however, does not appear beside him. Instead, Ellis joins the hearing virtually, poised and unsmiling in a sleeveless maroon turtleneck.
Meanwhile, in a small box on the right side of my Webex courthouse screen, I spot a core member of the Fulton election probe team: Will Wooten. Wooten, who appears to be sitting behind his desk at the district attorney’s office, has joined virtually to serve as a witness in the hearing.
Judge Lammons kicks off the hearing with a set of preliminary issues. After recapping the background of the case, Lammons asks the parties how they intend to proceed. He’s worried about how many witnesses the parties plan to call. “I have one hour today,” he stresses. Downs assures him that the state plans to call a single witness: Wooten. Melito, for his part, doesn’t plan to call any witnesses. Lammons, apparently satisfied that the hearing won’t occupy too much of his time, instructs Downs to proceed.
Downs begins by walking through the “materiality” and “undue hardship” elements that need to be met under the applicable Colorado law, C.R.S.A. § 16-9-202. As Downs walks the court through these requirements, Lammons interjects to ask why she’s starting with a “preamble.” In response, Downs cuts to the chase: She wants the court to limit its inquiry to the “undue hardship” prong of the statute. She argues that the material witness certificate issued by the Georgia judge, Robert McBurney, is sufficient evidence of Ellis’s materiality and necessity.
Lammons disagrees. The statute, he says, talks about the certificate being “prima facie,” or presumptive, evidence of the witness’s materiality and necessity. But prima facie evidence can be rebutted, he explains, so the court needs to hear evidence on both materiality and undue hardship. “We can proceed that way, Judge,” Downs concedes.
With that, Downs begins to question Wooten. Starting with the materiality and necessity prong, Wooten sets out the “five main areas” of the district attorney’s interest in Ellis. The first category relates to Ellis’s involvement in a handful of hearings before the Georgia legislature in December 2020. Based on video footage and public statements about those sessions, Wooten and his team believe that Ellis was involved in the “coordination and planning” of those hearings, as well as other, similar legislative hearings in multiple states. He mentions Arizona, Pennsylvania, Michigan, and “other states that were considered swing states in the 2020 election.”
After Downs interjects with several clarifying questions, Wooten explains how the state legislative sessions connect to the multi-state plan by the Trump campaign to influence the election. “We believe that part of that plan was getting in front of state legislatures with the aim of convincing them that there was widespread fraud,” he says. According to Wooten, the scheme involved persuading state legislatures to “consider multiple remedies,” including “getting rid of slates of electors that were actually voted in by the voters and appointing their own slates of electors.” Wooten notes that the same scheme came up in multiple states, including Georgia.
Wooten moves on to the second area of interest in Ellis’s testimony: documents she authored as a legal adviser to President Trump and the Trump campaign. Specifically, Wooten points to two memos Ellis wrote, one to Trump and another to Jay Sekulow, that apparently related “to potential ways the outcome of the election could have been influenced.”
Wooten discusses the third category related to the materiality of Ellis’s testimony: her social media posts alleging election fraud. Downs jumps in to clarify how Ellis’s tweets and social media commentary were a part of the Trump campaign’s multi-state plan to influence the election in Georgia. In response, Wooten says that they related to the scheme both “in their actual substance” and “to the extent that they relate to either intent or state of mind.”
Briefly, Wooten touches on the fourth category: Ellis’s promotion of election fraud claims in media appearances and public interviews. Then he turns to the final category, which he describes as Ellis’s “unique knowledge” about how the Trump campaign coordinated the alleged election interference, as well as any “known or unknown” actors involved in the plot.
Then Downs quizzes Wooten about the “undue hardship” on Ellis. Wooten tells her that the district attorney expects Ellis’s appearance to conclude within a day. He points out that the district attorney’s office has arranged hotel and air travel that would allow Ellis to fly out as soon as her testimony is complete. Downs tenders exhibits that document the travel arrangements made by the district attorney’s office.
Finally, Downs pivots to questions about the “criminal” nature of Georgia’s special purpose grand jury. In a court filing prior to the hearing, Ellis’s legal team had pointed to Georgia Court of Appeals precedent in Kenerly v. State, which appeared to suggest that special purpose grand juries in Georgia are merely “civil” investigations under state law. Latching on to that language, Ellis argued that she should be subject to the rules for compelling the appearance of an out-of-state witness in a civil procedure, not a criminal procedure.
Responding to this argument, Wooten explains that special purpose grand juries can operate as a civil investigation in some instances, but “we requested it to look into alleged criminal law violations.” He notes that the grand jury has the authority to make recommendations regarding criminal prosecutions. “From our perspective, it’s completely criminal in nature,” he says. As Wooten prepares to delve into the case law on the subject, Lammons interjects. “Frankly, I’ve already looked at this issue,” he says. “To me, it’s a non-issue.”
Next, Ellis’s counsel, Michael Melito, jumps into frame to cross-examine Wooten. He asks if Wooten personally examined videos of Ellis speaking before the Georgia legislature in December 2020. Wooten attempts to correct him, explaining that he never claimed Ellis spoke directly to legislators at the Georgia hearings. She was present at the hearings, he continues, but he never claimed that she testified. He points out that she did speak to legislators at similar hearings held in other states.
At this point, Melito accuses Wooten of making assumptions about Ellis’s involvement in the election fraud scheme. “So as a prosecutor, you prosecute people with assumptions? Is that how you operate?” he snipes. Lammons, clearly annoyed, tells Melito to “knock it off.”
Melito again demands evidence of Ellis’s involvement in state legislative sessions. Wooten remains even-keeled, repeating his earlier refrain about the video evidence and public statements he reviewed, which showed Ellis’s presence at the Georgia hearings and testimony in at least one hearing in another state. Still, Melito lingers on the legislative sessions, prodding Wooten to explain how they connect Ellis to targets of the special purpose grand jury investigation. “She’s sitting there with Rudy Giuliani, so I would say that connects her,” Wooten says, referring to a legislative hearing in Georgia on Dec. 30, 2020. Then, after a long pause, Melito announces that he has no further questions.
Lammons directs the parties to closing arguments. Melito is up to argue, first, that special purpose grand juries are civil in nature. As such, the rules of civil procedure should apply, he argues. Then he turns to the materiality prong, alleging that Fulton County prosecutors falsely claimed Ellis testified at the Georgia hearings and, for that reason, Judge McBurney relied on “false evidence” in issuing the material witness certificate. Further, he argues, all the evidence presented today is “hearsay” or “second-hand” information. In closing, he declares that the state failed to meet its burden to prove that Ellis would not suffer “undue hardship.”
Downs pops back up to respond. To counter Melito’s arguments on the civil nature of the special purpose grand jury, she walks through the language of the order authorizing the special purpose grand jury, which specifies that the special purpose grand jury may make recommendations for criminal prosecutions. She next attempts to rebut Melito’s allegations that the certificate of material witness contained false information, parsing the language in the certificate line-by-line. Lastly, she moves to the undue hardship issue, arguing that Ellis will not be burdened by a single day of testimony.
Now Lammons is ready to issue an order. He begins by explaining that he is unconvinced by Melito’s argument that the special purpose grand jury is “civil” in nature. Next, he addresses the allegation that the material witness certificate contains false information. While admitting that some language in the certificate is “ambiguous,” Lammons says that Wooten’s testimony clarified Ellis’s role in legislative hearings held both in Georgia and elsewhere. “The reality is: there is enough evidence in the record for the court to find that Ms. Ellis would be a material witness.”
Having found the materiality requirement satisfied, Lammons additionally finds that there is “no evidence” of undue hardship. He notes that Ellis is currently located on the east coast, which places her closer to Georgia.
With that, Lammons announces that he will grant the summons for Ellis to appear in Georgia. Before adjourning, he stresses the limited scope of his ruling. “Ms. Ellis is not being charged with a crime here,” he says. “It’s one witness from this state testifying in another state.”