Nashville prosecutor wants search warrant unsealed, alleges conflict of interest in AG’s office
Nashville District Attorney General Glenn Funk is calling for records relating to the recent search of his offices to be unsealed. He is also calling it a conflict of interest for Attorney General Jonathan Skrmetti’s office to be leading the probe into whether improper recording devices were used outside Funk’s offices.
According to the filing, a onetime assistant prosecutor who left Funk’s office last summer is now working for the unit investigating her former employer — who is also current client of the AG on several legal matters.
UPDATE: The AG’s office tells WTVF-TV the that “no former employees … are involved in the ongoing investigation, nor employed within the division handling the investigation.”
Funk has outraged Republican state lawmakers by announcing the city won’t prosecute the possession of small amounts of marijuana, abortion providers, or violations of a transgender bathroom sign law before it was halted in federal court.
Read the whole filing here:
IN THE CRIMINAL COURT FOR DAVIDSON COUNTY, TENNESSEE DIVISION IV
IN RE SEALED SEARCH WARRANT. Case No. 5810
RESPONSE OF DISTRICT ATTORNEY GENERAL GLENN FUNK AND REQUEST FOR RELIEF
District Attorney Glenn Funk, through counsel, requests a public hearing in this matter, at the conclusion of which General Funk will request that this Court order the unredacted release of all documents related to the Tennessee Bureau of Investigation search of the Office of the District Attorney General for the 20th Judicial District, which took place on March 24, 2023, and in particular, the following:]
1) The search warrant executed on or about March 24, 2023, at the office of the District Attorney for Davidson County, Tennessee (“Search Warrant”);
2) The application for the Search Warrant;
3) Any probable cause affidavits submitted in support of the Search Warrant;
4) The return of the Search Warrant;
5) Any motion or request to seal the records relating to the Search Warrant;
6) Any order sealing the Search Warrant related documents; and
7) Any other records submitted to this Court in connection with the Search Warrant.
This release will confirm that any probable cause for this search warrant was predicated on either one or more individuals providing false information to law enforcement or a misapplication of the law.
As grounds, District Attorney Glenn Funk would show:
1. Glenn Funk has been an attorney in good standing with the Tennessee Bar since 1985. He was elected District Attorney by the voters of Davidson County on May 6, 2014 and reelected on May 3, 2022.
2. General Funk has an AV rating by Martindale Hubbell, signifying a top rating for ethics and expertise in the law.
3. General Funk teaches Crimes and Constitutional Criminal Law at the Nashville School of Law and teaches Trial Advocacy at Vanderbilt Law school. General Funk is a respected legal scholar. As General Funk stated to Attorney General Skrmetti on February 13, he “knows what the law allows and knows what the law prohibits.” (Id.) General Funk always follows the law.
4. Beginning May 4, 2022, the day after General Funk’s reelection and continuing to the present, Mr. Williams has made over 100 contacts, FOIA requests, demands for comments and ambush interviews of General Funk and members of his office, including going to their homes.
5. Since November 1, 2022, Channel 5 has broadcast over a dozen stories regarding General Funk totaling over 45 minutes of airtime. Channel 5 and/or Channel 5 employees have pushed negative stories in their social media platforms as well.
6. Mr. Williams has pushed state legislators to make negative comments about General Funk. He also made demands to the Comptroller and the Attorney General to open investigations of General Funk.
7. General Funk leads an office of 70 attorneys and 90 support staff who handle over 40,000 criminal cases annually. General Funk is responsible not only for the prosecution of these cases but for proper allocation of budget resources, human resources issues, and the safety and security of members of his office.
8. In 2001, under then District Attorney Torry Johnson, the District Attorney’s Office moved from the Historic Courthouse to Washington Square, a public building on Second Avenue. General Johnson installed limited security, including audio and video in the reception area and video in the hallways of the office.
9. The Christmas Day bombing in 2020 severely damaged much of the Washington Square building. A substantial number of District Attorney office members had to be relocated into other space within the building. Repairs to the building continued from December 2020 until mid-2022. During the repairs, the District Attorney’s Office was even less secure than normal, as Washington Square opened roof access through the office for construction workers.
10. Once this access was closed, General Funk along with Deputy District Attorneys Roger Moore and Amy Hunter directed the IT head to contact the TBI to do a complete security sweep to make sure the office was secure from any electronic surveillance devices. The TBI conducted this search on October 12, 2022. The TBI never sent a report on this sweep. To his surprise, General Funk discovered in early February that the TBI only swept four offices and did not do the complete sweep requested. When asked on March 24, 2023 why the TBI had not performed the complete sweep as requested, TBI Agent Neese responded, “that was our call.” Agent Neese did not elaborate as to why the TBI limited their search.
11 .On Friday, February 10, 2023 at 5:18 p.m., the Attorney General sent General Funk a preservation letter stating that the Attorney General was opening a criminal investigation into a possible violation of the Tennessee wiretapping statute. (Exhibit 1.) This was a shock to
General Funk because at no point has General Funk ever directed anyone or been aware of any illegal wiretapping by the District Attorney’s Office or within the District Attorney’s Office.12. On Monday, February 13, General Funk and Deputy District Attorney Amy Hunter hand delivered a letter requesting that the Attorney General or law enforcement immediately come inspect the District Attorney’s Office. (Exhibit 2.) The Attorney General refused to meet with General or Deputy District Attorney Amy Hunter that day. General Funk’s letter advised that this matter needed to be cleared up expeditiously so as not to undermine confidence in the District Attorney’s Office and that he and his office would cooperate completely.
13. On Wednesday, February 15, Deputy Attorney General Scott Sutherland agreed to meet via Zoom with General Funk. Deputy District Attorneys Roger Moore and Amy Hunter attended the Zoom meeting as well. Mr. Sutherland refused General Funk’s invitation to inspect the office but indicated he would convey to the TBI that General Funk desired them to come as soon as possible.
14. No one from the Attorney General’s office or the TBI accepted General Funk’s invitation to inspect the District Attorney’s office that week. Nevertheless, Attorney General Skrmetti confirmed this “investigation” to Channel 5 on Friday, February 17 which, as predicted in General Funk’s letter of February 13, led to the news articles reporting the investigation, which could have been concluded by then.
15. At all times, General Funk and the District Attorney’s Office have cooperated with the Attorney General’s requests and directions. General Funk has maintained communication with the Attorney General’s Office since the preservation letter. Nevertheless, on March 24, 2023, despite having received consent to search by General Funk’s letter to the Attorney General and subsequent conversations with the Deputy Attorney General, the TBI, at the direction of the Attorney General, went to the extreme and unnecessary measure of obtaining a search warrant for the Davidson County District Attorney’s Office.
16. At 1:00 p.m. on March 24, 2023, TBI Agents served the search warrant on the District Attorney’s Office. When requested, Agents refused to provide the affidavit in support of the search warrant. General Funk and members of the District Attorney’s Office assisted TBI agents by providing access to all areas of the office, including some areas of the Washington Square building not covered by the search warrant. TBI agents stayed as long as they desired, inspected every area they wanted to inspect and completed a thorough inspection. TBI agents left the premises around 3:00 a.m. on March 25. As a further show of good faith, District Attorney staff left TBI agents alone in the office around 6:00 p.m.
17. Given the immediate consent and invitation by General Funk to inspect his office, he is bewildered as to why the Attorney General felt the need to procure a search warrant in this matter. Further, General has no idea why the Attorney General felt the need to direct the search warrant to be sprung on the District Attorney’s Office without prior notice and during office hours, while disrupting the staff who were busy working on cases to keep Nashville safe.
18. As General Funk stated in his February 13 letter, he “knows the law and what the law prohibits.” Any probable cause in the search warrant affidavit must be based on false statements to law enforcement or a misapplication of the law.
19. While Channel 5’s petition asserts these records are under seal, the District Attorney’s Office has no knowledge of whether that assertion is true. If that assertion is accurate, the District Attorney’s Office moves to discover who made that decision and why.
20. The TBI has now had five weeks to review the results of their search. At this point the Attorney General should be ready to announce that they have found that General Funk does in fact follow the law at all times and that neither he nor the District Attorney’s Office has engaged in illegal wiretapping.
21. In order to promote further transparency and demonstrate continuing good faith, General Funk proactively submitted to a polygraph examination conducted by former FBI polygraph chief Kendall Shull. (Exhibit 3.) General Funk completely passed all questions, including that he never engaged in illegal electronic surveillance. General Funk and Mr. Shull agreed to provide the charts from this examination to TBI Special Agent Kendall Barham for his review. Special Agent Barham is the head of the TBI’s statewide polygraph unit. Further, General Funk challenges investigators to have any accusers submit to a similar polygraph examination.
22. Further, while serving as counsel for General Funk in the following five pending lawsuits, the Attorney General’s Office opened an investigation into its own client, which culminated in the raid:
1. Ray Passion v. Office of the District Attorney, No. 22GC13428 (Davidson County General Sessions Court)
2. Hannah Miyamoto v. Bill Lee et al., No. 23-cv-0424 (S.D. Cal.)
3. Mark Clayton v. Lauren Hogan et al., No. 3:22-cv-00936 (M.D. Tenn.)
4. Robert Harrison Kalk v. Jonathan Skrmetti et al., No. 3:22-cv-00243 (M.D. Tenn.)
5. William Crowder v. Funk et al., No. 22C2547 (Davidson County Circuit Court)
This represents a concurrent conflict of interest under the Tennessee Rules of Professional Responsibility. Specifically, Rule 1.7(a) provides that a concurrent conflict of interest exists if, among other things, “the representation of one client will be directly adverse to another client . . . .” Rule 1.11 provides that Rule 1.7 applies to public employees. See also Tenn. Sup. Ct. R. 8, RPC 1.0, cmt 3 (“With respect to the law department of an organization, including a governmental agency, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct.”). In fact, a former Assistant Attorney General from General Funk’s office, who was employed there through July of 2022, is now working for the Attorney General in the unit investigating its own client — General Funk.
23. Thus, it is absolutely necessary to open the instant file and affidavit because it directly affects whether General Funk has an obligation to report the Attorney General to the Board of Professional Responsibility, request an advisory opinion, and/or request one or more court orders requiring the Attorney General to withdraw from representing General Funk and his office in all pending and future matters due to violations of its ethical and professional duties.
CONCLUSION
General Funk is a public official, The District Attorney’s Office is a public office. Transparency is key to public trust. For all the above reasons, General Funk requests that the Court release all documents regarding this search in unredacted form.
VERIFICATION
I declare under penalty of perjury that the foregoing facts are true and correct.
/signed/
District Attorney General Glenn Funk
05 / 02 / 2023
Respectfully submitted,
s/ James D. Kay, Jr.
KAY GRIFFIN EVANS, PLLC
222 Second Ave. North, Suite 340-M Nashville, TN 37201Robert E. Boston
HOLLAND & KNIGHT LLP
511 Union St, Suite 2700
Nashville, TN 37219Attorneys for Glenn Funk
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via e-mail on the following:
Ronald G. Harris William J. Harbison Neal & Harwell, PLC
1201 Demonbreun St., Suite 1000 Nashville, TN 37203Tennessee Attorney General
c/o Lauren S. Lamberth, CIPP/US, CIPT Special Counsel to the Chief Deputy Office of the Tennessee Attorney General
P.O. Box 20207 Nashville, Tennessee 37202
