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Jim Bourg

With Rudy Giuliani just days away from his scheduled Tuesday appearance before an Atlanta grand jury, his lawyer asked for a last-minute delay — providing a doctor’s note saying the 78-year-old was not cleared to fly because of a recent “invasive procedure.”

The email response from the office of Fulton County District Attorney Fani Willis was unyielding.

“We do not consent to change the date,” wrote a deputy to Willis, adding: “We will provide alternate transportation including bus or train if your client maintains he is unable to fly.”

The dispute, which burst into view Monday amid contentious legal filings and exchanges over Giuliani’s travel schedule and airline ticket purchases, prompted a judge to delay Giuliani’s Tuesday testimony and schedule a hearing with lawyers for each side.

It marked the latest sign of tension between prosecutors and potential witnesses in Willis’s burgeoning criminal probe of alleged <a href="https://www.washingtonpost.com/elections/" target="_blank" class="contextual_link">election</a> interference by former president Donald Trump and his allies. Giuliani, Trump’s former lawyer, had already signaled through his legal team that he would cite “attorney-client privilege” and probably refuse to talk about his interactions with Trump.

On Wednesday, a federal judge in Atlanta is slated to consider the claim of Sen. Lindsey O. Graham (R-S.C.) that he should not be compelled to testify to the same grand jury about his calls to Georgia’s secretary of state after the 2020 election.

<a href="https://www.washingtonpost.com/national-security/2022/07/05/georgia-grand-jury-subpoenas-sen-graham-giuliani-trump-legal-team/" target=_blank>Graham, a close Trump ally,</a> has argued that he made the calls in the ordinary course of his work as a senator, and that such duties are protected by the Constitution. Prosecutors have argued in court filings that Graham’s “unusual activity mirrored the Trump campaign’s own efforts to potentially disrupt the Georgia election certification process.”

The legal maneuvering this week comes as Willis’s inquiry has expanded and emerged as a legal threat to the former president and some of his most important allies.

“What seems clear is the Fulton County district attorney’s office is getting closer and closer to the former president’s innermost circle,” said Anthony Kreis, a law professor at Georgia State University. “That alone suggests to me that the investigation is making important headway.”

Willis launched the probe in the weeks after the Trump campaign and its allies placed calls to Georgia officials seeking to overturn the election results. The case covers some of the matters reviewed by the House select committee investigating the <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target="_blank" class="contextual_link">Jan. 6</a>, 2021, insurrection and by the Justice Department inquiry examining efforts to disrupt the peaceful transfer of power. But Willis, 50, has been at the forefront in publicly pursuing a criminal case, in part because she is able to take advantage of state statutes that legal experts say could make a criminal prosecution faster and less cumbersome than a federal case.

She has subpoenaed more than three dozen individuals — including a group of Georgia Republicans she has identified as targets of the criminal probe for their role as <a href="https://www.washingtonpost.com/politics/2022/06/06/fake-trump-electors-ga-told-shroud-plans-secrecy-email-shows/" target=_blank>purported Trump electors</a>.

Willis has not ruled out calling Trump as a witness, telling an <a href="https://urldefense.com/v3/__https:/www.11alive.com/article/news/crime/fulton-county-da-indictments-against-gangs/85-f0c57732-e355-4014-943c-7baa0bdd8a9c__;!!M9LbjjnYNg9jBDflsQ!Dlvugfh_M99yih68DGvJMwJRH1iUt48coy_-aGCLSG5klBIAkteEiI64EguOc1I1YuB-XbP_yVKdmul3-826-1Ao$">Atlanta television station</a> last week that “we are at least 60 days away before I even have to make that kind of decision.”

Willis declined through her office to respond to requests from The Washington Post for an interview.

Willis’s critics, including Trump, his allies and some involved in the case, have accused her of conducting a politicized inquiry designed to attract national attention while ignoring local problems, such as Atlanta’s soaring crime rates. The former president derided her on his Truth Social platform as a “young, ambitious, Radical Left Democrat ‘Prosecutor’ from Georgia.”

The judge presiding over the inquiry <a href="https://www.washingtonpost.com/national-security/2022/07/25/georgia-trump-fani-willis/" target=_blank>disqualified Willis last month</a> from investigating one of the would-be Trump electors — Republican state Sen. Burt Jones — after Willis hosted a fundraiser for Jones’s opponent in an upcoming lieutenant governor’s race. The judge, Fulton County Superior Court Judge Robert McBurney, called it a <a href="https://www.washingtonpost.com/politics/2022/07/25/optics-are-horrific-political-pitfalls-trump-probes-by-dems/" target=_blank>“’What are you thinking?’ moment” and said the “optics are horrific.”</a>

By all indications, the inquiry has been sprawling but intensely focused on whether Trump and his allies violated Georgia laws.

One Georgia Republican who appeared before the grand jury told The Post that prosecutors were seeking to learn about interactions between lawyers for Trump and state-level Republicans on the ground. The witness spoke on the condition of anonymity because of the sensitivity of the topic.

Unlike a typical grand jury, the special panel is authorized for one year and will not be asked to vote on an indictment at the conclusion of its work. Instead, the special grand jury of 23 members and three alternates will issue a report to Willis with recommendations on whether to bring charges in the case. The report is not required to be made public, nor is Willis obligated to act on it in any specific time frame.

But prosecutors are attempting to fend off requests to toss their subpoenas or delay testimony.

The postponement request last week by Giuliani’s attorney, Robert Costello, referenced a July procedure in which Giuliani had two stents placed in his coronary arteries.

Prosecutors on Monday indicated they would insist that Giuliani appear in person — filing a legal brief claiming that Giuliani had traveled outside New York since his surgery and saying they had obtained records showing him paying cash for airline tickets for late July to Rome and Zurich.

Costello called the prosecutors’ claims “ludicrous,” adding: “First of all, Giuliani has not flown anywhere since his operation. He has not purchased these tickets and never purchased airline tickets for cash for any reason."

Costello said he offered prosecutors the opportunity to discuss the situation directly with Giuliani’s physician, but he said they did not do so.

Separately, a Wednesday hearing before U.S. District Judge Leigh Martin May will focus on Graham’s contention that he should not be required to testify about his outreach to Georgia Secretary of State Brad Raffensperger in the days after the 2020 election. Raffensperger <a href="https://www.washingtonpost.com/politics/brad-raffensperger-georgia-vote/2020/11/16/6b6cb2f4-283e-11eb-8fa2-06e7cbb145c0_story.html" target=_blank>told The Post that Graham had asked whether the secretary of state</a> had the power to toss out all mail ballots in certain counties. He said Graham appeared to be asking him to improperly find a way to set aside legally cast ballots — an allegation that Graham denied.

Graham’s legal team, led by former Trump White House counsel Donald McGahn, says the senator is shielded by constitutional protections that prohibit interference with the work of members of Congress.

“There would be nothing to stop any state or local official from investigating — or ‘intimidating’ under the veneer of investigating — senators or representatives with which they disagree,” Graham’s lawyers said in their court filing.

The phone calls Graham made to Raffensperger’s office, his lawyers say, were part of his official legislative duties to help inform his vote to certify the election for President Biden and to draft election-related legislation.

Willis’s office says Graham questioned Raffensperger and his staff about reexamining certain absentee ballots cast in Georgia “to explore the possibility of a more favorable outcome for former president Donald Trump,” court records show.

It is not clear whether Graham will succeed.

May recently rejected similar arguments from Rep. Jody Hice (R-Ga.), a Trump ally who echoed false claims of widespread election fraud in his failed bid for secretary of state. Hice is scheduled to appear before the grand jury on Aug. 16.

It is also unclear whether Willis’s team will succeed in learning information from the state Republicans who presented themselves as Trump electors.

Willis is examining whether these local Trump supporters were part of a scheme designed by Trump’s team to create slates of fake electors in Georgia and other battleground states, perhaps to give Vice President Mike Pence a reason to declare that the outcome of the election was in doubt when he was to preside over the congressional counting of the electoral college votes on Jan. 6, 2021.

Lawyers for 11 of the 16 would-be Georgia Trump electors have argued that their clients abided by the law, claiming that they met as a contingency measure before a court had ruled on a challenge to the Georgia vote.

They also complained in court filings about Willis sending letters <a href="https://www.washingtonpost.com/national-security/2022/07/19/georgia-fake-electors/" target=_blank>identifying the purported Trump electors as “targets” </a>of her criminal inquiry. The attorneys described the target letters as a “publicity stunt” that “wrongfully converted [the Trump electors] from witnesses who were cooperating voluntarily and prepared to testify in the grand jury to persecuted targets of it.”

As a result, the lawyers said, they had advised their clients to assert their right not to answer questions.

In contrast, a lawyer representing two of the purported Trump electors in federal probes, Robert N. Driscoll, said his clients cooperated with the House Jan. 6 committee and are responding to Justice Department subpoenas.

Amy Gardner contributed to this report. Brown reported from Atlanta.

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White House Correspondents Association, Raymond Clapper Memorial Award, for series on conflicts of interest in the federal courts with Star Tribune reporter Sharon Schmickle, 1996

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Oberlin College, BA in Government and History, 1974

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Tom Hamburger is an investigative reporter on the national desk of The Washington Post. He has covered the White House, Congress and regulatory agencies, with a focus on money and politics. 

Tom Hamburger

Nieman fellow, Harvard University

Cornell University

Ann Marimow covers the Supreme Court for The Washington Post. She joined The Post in 2005, and has spent a decade writing about legal affairs and the federal judiciary. She previously covered state government and politics in California, New Hampshire and Maryland.

Ann Marimow

Dartmouth College, BA in Political Science

Matthew Brown is a reporter covering threats to democratic institutions, voting rights, political polarization and civic engagement.

Matthew Brown

Rudy Giuliani's grand jury appearance put on hold amid dispute with Georgia prosecutors

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FILE PHOTO: Attorney John Eastman gestures as he speaks next to U.S. President Donald Trump's personal attorney Rudy Giuliani at the January 6 Trump rally on the Ellipse in Washington