McBurney is overseeing the Fulton County special purpose grand jury investigating former President Donald Trump and his allies for allegedly meddling with the 2020 election. Fulton prosecutors previously notified all 16 of the GOP electors that they are targets of the ongoing criminal investigation and could face criminal charges. The 16 individuals cast Electoral College votes for Donald Trump in a committee room at the state Capitol on the same day the official slate of 16 Democratic electors cast their votes for President Joe Biden on the Senate floor upstairs.
Atlanta attorneys Hollie Pierson and Kimberly Debrow, whose legal fees are paid by the state GOP, had argued that they could represent all 11 electors. They contended these clients are identically situated because each of them did nothing wrong. The lawyers also said they had spoken at length with each client about the perks and perils of joint representation.
Moreover, these 11 clients also agreed to waive potential conflicts of interest and had entered into a joint representation agreement that McBurney found to be “thorough, sufficient and knowingly and intelligently executed.”
But McBurney wrote, “The exception is David Shafer. … He is substantially differently situated from the other 10 clients jointly represented by Pierson and Debrow.”
That is because of his role in establishing and convening the slate of GOP electors, his communications with “other key players in the District Attorney’s investigation” and his role in other post-election efforts to call into question the validity of the presidential vote count in Georgia, McBurney wrote.
“He is not just another alternate elector,” McBurney noted. “… His fate with the special purpose grand jury (and beyond) is not tethered to the other 10 electors in the same manner in which those 10 find themselves connected.” And this imbalance to potential exposure of criminal liability “makes it impractical and arguably unethical for Pierson and Debrow to represent all 11 together.”
In a statement, Pierson and Debrow said they disagreed that Shafer is differently situated from the other 10 electors. And they said he did not select the alternate electors or have any “legally material” communications with key players in the investigation.
The proper inquiry is whether the 11 electors are aligned in their defenses, the attorneys said. “Here, the undisputed evidence is that all 11 electors are so aligned, and none should be deprived of their counsel of choice.”