The Georgia state House and Senate adopted rules on Wednesday that say communications between lawmakers and people outside the legislature should be shielded by legislative privilege after some lawmakers were forced to testify in a 2020 election-related special grand jury probe.
The U.S. and Georgia constitutions say that lawmakers shouldn’t face questioning for activities such as communications with third parties that might take place during public policy debates and discussions related to making laws.
The Republican-controlled legislature voted to support the rule change language, while most Democrats voted against it. The Georgia General Assembly routinely adopts rules at the beginning of each two-year session.
House Majority Leader Chuck Efstration, a Republican representing District 104, said on the House floor ahead of the vote that the purpose of the rule change is to recognize and remind members of that legislative privilege and reflect in the House rules “what is already in place through constitutional means about legislative privilege.”
The rule change will also allow “constituents who may have contact with a representative or an elected official to have a greater sense of relief that that legislator can determine whether or not that communication might become public at some other point, which could be a real benefit to the public,” Efstration said.
During the debate on the House floor about the rules change, Efstration contended that lawmakers “can’t all be experts on every issue that comes up before us” and that they “rely on others who do have expertise.”
“That communication in order to help us make those determinations would be protected,” he added.
Democrats, on the other hand, question whether Republicans are attempting to conceal evidence from the period following the 2020 elections when several GOP members highlighted Trump’s claims of election fraud in Georgia.
“Are we trying to protect that because of some of the issues in elections that came up with elections?” asked Senate Minority Whip Harold Jones II, an Augusta Democrat.
Fred Smith, a constitutional law professor at Emory University in Atlanta, said that district attorneys have powers that must be respected as well.
“It’s hard to imagine that a state legislative rule could kind of trump a DA’s ability to engage in their own state constitutional responsibilities, up to the line provided for in the Constitution,” Smith said.
Rule Change Might Not Hold Up in Court
Changing the language of the legislative rules does not necessarily mean it would hold up in court. Judges across the country have usually denied broad claims of legislative privilege.
Last year, a Georgia judge compelled some lawmakers who tried to invoke legislative privilege as a shield to testify before a special grand jury in Atlanta. The grand jury sought to investigate whether former President Donald Trump and his allies violated the law by attempting to interfere in election results following the 2020 election.
Judge Robert McBurney of Fulton County Superior Court ruled in July 2022 that lawmakers have extensive immunity but can be questioned about their discussions with anyone outside the legislature. Lawmakers have claimed that they should be completely exempt from testifying.
McBurney ordered that the grand jury could not ask questions concerning communications between lawmakers or legislative staff members, citing legislative privilege as the reason. But he found that such immunity “ought not to be a shield that benefits those outside individuals or otherwise obscures from the grand jury’s view the full scope of the alleged efforts to subvert Georgia’s elections.”
The special grand jury has finished its work, issuing its final report and findings after many months of witness testimony, and McBurney ordered the panel dissolved on Jan. 9 (pdf).
The court stated that the decision of whether to publish the report, as requested by the special grand jury, remained open. A hearing to determine whether the report will be made public is planned for Jan. 24 in Atlanta.
The dissolution of the special grand jury also moves the investigation forwards to explore possible criminal charges against the former president and his allies. Fulton County District Attorney Fani Willis will decide whether to pursue an indictment from a regular grand jury.
In Georgia, special grand juries cannot issue indictments but might instead provide a final report recommending certain actions.
The Associated Press and Chase Smith contributed to this report.