During a Monday hearing related to the Georgia election interference and racketeering (RICO) case against Donald Trump, the judge overseeing the matter found the Fulton County District Attorney’s Office intentionally violated Peach State open records laws.
Citing “a failure to timely provide the documents” and possibly one still outstanding document, Fulton County Superior Court Judge Rachel Krause said she would enter a judgment in favor of the plaintiffs. That judgment, the court noted, will include an award of attorney’s fees. The dollar amount of the penalty being imposed on the district attorney’s office was not determined during the hearing.
In the case, attorney Ashleigh Merchant, who represents co-defendant Michael Roman in the underlying RICO matter, proved that Fulton County District Attorney Fani Willis‘ office violated the Georgia Open Records Act by failing to quickly provide documents related to the employment and remuneration of Nathan Wade — the former special assistant district attorney forced to resign from the RICO prosecution due to his onetime romantic relationship with Willis — and other documents related to how the office spent public funds.
Instead, the DA’s office delayed those requests for months and said the law did not apply to them — with one particular employee responsible for the stonewalling. Only when litigation was filed, and a subpoena was served, did the DA’s office comply with the law.
As Law&Crime previously reported, Dexter Bond, the deputy of operations for the DA’s office, admittedly responded unfavorably to the plaintiffs based on the identity of the attorney filing the requests and concomitant lawsuit, according to his own in-court testimony.
That behavior never sat right with the judge.
“By the time those requests morphed into the subpoena that was served on Fulton County, Ms. Merchant had been educated about what she was asking for and how to ask for it more clearly,” Krause lectured the state. “Which, again, could have all been accomplished had Mr. Bond not had the ‘Ashleigh Merchant Rule.’”
Monday’s hearing was a continuation of a monthslong process that began in earnest over the summer. During a recent hearing, the plaintiffs rested their case. The final hearing was to determine remedies — in the form of punishment, awards, injunctive relief, and otherwise — should the court rule in favor of the plaintiffs.
The tenor of the interactions during the proceedings gave a solid indication of where the court was leaning — and where it eventually ended up.
Substantially on the defense throughout, Andrea Alabi, legal counsel to the district attorney, made a consistent pitch that the lawsuit filed by Merchant was a dishonest attempt to “harass” and embarrass Willis’ office in service of Roman’s criminal defense.
While insisting she was “sensitive” to the state’s position, the judge was substantially not receptive to those arguments throughout.
“Does the fact that an attorney intends to use those public records to their advantage in another piece of litigation — why does that matter?” Krause asked.
Alabi replied that the cases are intertwined and that Merchant’s goal in the open records case is to “undermine the criminal prosecution” in the RICO case.
The judge interjected.
“My question is: As a zealous advocate for their client, what is wrong with an attorney saying: ‘I am aware that there are public records that I can request through a statutorily-allowable procedure that I might use to assist in the zealous defense of my criminal defendant client,’” Krause said. “What is wrong with that?”
Alabi replied that “zealous defense attorneys” are “important” but stressed the long-standing position of the DA’s office: “That is not what is happening here. That is not why we are here today. We have something that is very different.”
The district attorney’s legal counsel argued that Merchant and her client’s open records efforts are “inextricably tied” to the underlying RICO case. She further argued that none of Merchant’s assertions about the DA’s lack of compliance with open records laws were correct on a basic level.
“Those assertions were made for the sole purpose of undermining the prosecution in the criminal case,” Alabi said. “That has been the driving force of what led us here. And that is very different than zealous advocacy.”
To hear the DA’s office tell it, all of their duties under the law have been performed — and then some. Alabi said one of the tenets of the Willis administration is transparency and that her office had made pains to provide the requested documents.
“These accusations, this lawsuit, suggest otherwise,” Alabi said. “That suggestion is not because there is a legitimate basis. It is because plaintiffs wish to use that in order for Michael Roman to get out from underneath this criminal case. The appropriate and proper way to handle that situation is to allow that man to have a trial.”
Again, the judge interjected.
“I apologize if I sound like I’m beating a dead horse here,” she said. “But again. And what I’m struggling with is: Whether any of this information is intended for or will be used for. I question whether that’s relevant to a determination of: ‘Were these open records? Were they clearly requested? Were they provided? Or was a good faith effort made to find them and provide them?’ And, ultimately, whether they’re admissible in evidence for any purpose against Mr. Roman — or on his behalf — is a decision for a different judge in a different proceeding.”
Alabi continued to argue that Merchant and Roman were trying to impose “a game of gotcha” on the DA’s office.
The judge was not persuaded by Alabi’s arguments and appeared particularly unmoved at the invocation of transparency as a principle and the purported compliance with those principles in regard to various public records requests.
“Even though the official position of the DA’s office in this litigation is that they’re not governed by the open records act,” the judge noted.
Alabi replied that people can still make such requests of the DA’s office — saying the agency is, in fact, “inundated” with such requests.
The judge was less than taken with this argument. Another interruption came immediately.
“They apparently can’t be enforced against you,” Krause said dismissively. “Because the law doesn’t apply to you. According to the official position of the district attorney’s office and the Fulton County District Attorney in this lawsuit. Just saying.”
As Alabi wrapped up, she also explicitly accused Merchant of working to try and influence “the election.”
More Law&Crime coverage: ‘I’m tired of listening’: Hearing related to Trump RICO case goes off the rails as judge says ‘I can read’ and upbraids both witness and attorney
The plaintiffs had a much easier time at the dais.
Ashleigh Merchant’s husband, John Merchant, who is a co-namesake partner in the Merchant Law Firm, began by castigating the state for their “political speech” and said that he would cabin his arguments to “the law.”
“Many of the requests asked for how the DA’s office spent money,” he said. “Many of them had nothing to do with the criminal case, as your honor has appropriately pointed out. Yet we continue to hear this banging on the table about this being some sort of politically-motivated, media-motivated type of action — and it is not.”
Krause, for her part, would later directly address the state’s characterizations of Ashleigh Merchant — saying that she generally found those attacks on her both untoward and unsupported.
The judge specifically rubbished the accusation that Roman’s attorney was intent on making a media circus out of the lawsuit. This was more or less disproved, the judge said, when Merchant dropped her demand for Willis to testify after getting all she needed from Bond’s own bombshell admission of bias.
The real issues, John Merchant said, were: (1) whether or not the DA’s office was subject to the open records act; (2) whether or not the requested records were public records; and (3) how the DA’s office responded to the requests.
“I don’t think there’s any real doubt here, or dispute, that they haven’t given us the documents — or didn’t give us the documents — in time,” he said. “Now, there’s a lot of this: ‘We gave it to ’em; we gave it to ’em; we gave it to ’em’ months and months later, and ‘There’s nothing to see here, judge, because they’ve gotten the documents now.’ That’s not the issue. The issue is it took us eight months of litigation to get here. And they only gave us documents, in piecemeal fashion, only after we forced their hand. Only after we filed the lawsuit.”
In rebuttal, another attorney arguing on the government’s behalf tried her hand to convince the court that the plaintiffs had failed to prove their case.
One interaction offered some insight into how those cleanup efforts went.
“The whole goal here is to mitigate litigation,” Sandy Monroe, representing Fulton County, said. “We’re not trying to have this long and drawn out.”
The judge quipped in response: “I think the whole goal here is to technically provide public records to members of the public.”
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