ATLANTA (CN) — The Georgia judge overseeing the election interference case against Donald Trump heard arguments Thursday from one of the former president's co-defendants to gain access to communications between state prosecutors and White House officials.
Jeffrey Clark, a former senior Justice Department official who advocated for Trump's claims of election fraud, faces two charges under the sprawling racketeering indictment brought in August.
According to the indictment, Clark drafted a government letter in December 2020 stating that DOJ had “significant concerns” about fraud that may have affected the outcome of the election in Georgia and other states, even though there was no evidence that such concerns existed.
The unsent letter urged Georgia Governor Brian Kemp and other state officials to convene a special session of the General Assembly to invalidate official election results and to send Congress a separate slate of electors supporting Trump.
Trump briefly considered appointing Clark to serve as acting attorney general in place of Jeffrey Rosen, who refused to legitimize the fraud claims. The former president backed down from this idea only after several senior officials threatened to resign in protest.
During Thursday's hearing, Clark's attorney, Harry MacDougald, asked the judge for access to any records of correspondence between the federal government and state prosecutors in the case. Specifically, he asked for "Touhy" requests made for the testimony of Rosen and former Department of Justice official Richard Donoghue.
The "Touhy" process requires litigants to seek authorization from the federal government for the testimony of former and/or current justice department officials regarding their official duties.
MacDougald said that according to a New York Times article, the Fulton County district attorney's office asked the government for two-week clearances from Rosen and Donoghue, but their request was refused.
The attorney argued that the two officials are essential witnesses under the indictment for one of the charges against Clark for attempted false writings and if the state cannot get their testimony, they likely won't be able to prove their case.
While Rosen and Donoghue did not appear in person before the special grand jury seated to investigate the district attorney's election interference probe, the jurors were shown a video of their public testimony before the Jan. 6 House Committee.
Fulton County Assistant District Attorney Alex Bernick said that their office has two letters that were exchanged between current or former White House officials.
Fulton County Superior Court Judge Scott McAfee said he wants to take a look at the documents in his chambers to determine whether prosecutors need to turn them under seal over to the defense.
MacDougald also raised the argument that the district attorney's office was engaging in "selective" and politically motivated prosecution, claiming that Clark is the only case he is aware of where someone was prosecuted for attempted false writings.
But Bernick argued that just because it is the first time someone is prosecuted under a statute, it does not necessarily give rise to a selective prosecution claim.
Also on Thursday, Trump's attorneys joined in on a motion from one of his other co-defendants seeking to dismiss the indictment and disqualify Fulton County District Attorney Fani Willis and her team from prosecuting the case.
Filed earlier this month on behalf of Mike Roman, the motion accuses Willis of having an "improper" relationship with one of the case’s special prosecutors and benefitting financially from it. Roman faces seven charges for purportedly aiding in the organization of slates of alternate Trump electors in Georgia and other battleground states while working for the Trump campaign as director of election day operations.
Trump attorneys Steve Sadow and Jennifer Little inflated the misconduct accusations by adding that Willis' recent remarks at a historic Black church in Atlanta had injected “racial animus” into the election interference case.
“I hired one white woman, a good personal friend and great lawyer, a superstar,” Willis said during her speech for a celebration held for Martin Luther King Jr. at Big Bethel AME Church. “I hired one white man brilliant, a great lawyer: and I hired one black man. Another superstar, a great friend, and a lawyer. They are going to be mad when I call them out on this nonsense.”
Sadow and Little argued in their motion that Willis' "provocative and inflammatory extrajudicial racial comments, made in a widely publicized speech at a historical Black church in Atlanta, and cloaked in repeated references to God, reinforce and amplify the ‘appearance of impropriety’ in her judgment and prosecutorial conduct."
McAfee scheduled a hearing on the matter for February 15. Willis was directed to formally respond to the allegations by February 2.
Willis has contended that the estranged wife of her special prosecutor on the case, Nathan Wade, “conspired with interested parties in the criminal election interference case to use the civil discovery process to annoy, embarrass and oppress" her and her investigation.
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