Mayor Blasts Warrant Release, Suggests DA Recuse Himself

NASHVILLE, TN -- The attorney for Metro Nashville Mayor Megan Barry says the mayor has shared her cell phone passcode with investigators and continues to fully cooperate with the TBI investigation into potential wrongdoing during her admitted affair with her now-former bodyguard. Even still, Jerry Martin - the former United States Attorney representing Barry - says the affidavit that alleged the existence of nude photos of a woman on Rob Forrest's cell phone should not have been made available to the public.

In multiple interviews Thursday after news of the photos broke, Barry insisted if the photos - which appear to have been taken while Forrest was on duty and on out-of-town trips with the mayor - are of her, they were taken without her knowledge and permission.

Meanwhile, Barry's office forwarded an opinion to local media from a legal ethics expert suggesting that District Attorney General Glenn Funk recuse himself from the investigation.

In a statement, Martin said he provided TBI Director Mark Gwyn with the passcode for Barry's cell phone Friday and said "The reports that the Mayor has been uncooperative during this process are untrue. We have provided the TBI with thousands of pages of documents at its request."

Martin further said in a meeting Feb. 15 with Funk, the DA told him "release of the images to the public was imminent."

"I informed him that if the images he described were of the Mayor, then they were taken without her consent.
Therefore, the publication of those images would be a felony under Tennessee law," Martin said.

Martin said he was in the process of preparing to turn over the mayor's phone to the TBI when the search warrant was sought "presumably at the direction of the District Warrant"

"By seeking the phone via a search warrant the authorities were ultimately afforded the opportunity for the unorthodox release of the underlying affidavit. While it may be common for search warrants themselves to be made public, the underlying affidavits are typically not returned and made public at this stage in an investigation," he wrote.

A TBI official told Tennessean reporter Dave Boucher Thursday that its search warrants are "seldom sealed."

"The Mayor has provided the TBI with thousands of pages of documents at its request. The Mayor
was in the process of turning over her personal phone before it was unilaterally seized. The Mayor
has provided the TBI with her passcode to her personal phone. Simply put, the Mayor continues
to cooperate with the investigation and knows eventually she will be cleared of any criminal
wrongdoing," Martin wrote.

In an interview with WSMV, Barry said the release of the affidavit mentioning the nude photos was meant to harm her personally and politically.

"It was completely designed to humiliate me and politically embarrass me. Therefore, it’s clear I have to make sure I am protecting my personal rights as we move through this," she told the station, while again insisting she is not resigning and that Forrest was not getting paid "while having relations with" her, as she has done since she admitted the affair January 31.

TBA President: DA's Office Should Recuse Or Be Disqualified

With Martin pointing to Funk as the reason search warrants were issued, the mayor's office shared a letter with the media from Tennessee Bar Association President Lucian Pera, who was involved in a recent revision of the American Bar Association's ethical rules.

In his letter to Martin, Pera opines that Funk and the entire district attorney's office "recuse or be disqualified" from participating in the investigation of the mayor because Metro is entering its budget season and "General Funk’s official responsibility and interest in obtaining Metro funding for his office creates a conflict of interest for him in supervising or participating in an investigation."

Interestingly, Pera's letter suggests that Funk could be seen - depending on the circumstances - as going too easy or too hard on the mayor because of his position.

"The typical concern underlying this 'material limitation' conflict of interest rule focuses on concern about the risk that a lawyer in this situation may, for example, 'pull his punches,' acting more to favor the interest that creates the conflict – here, for example, by acting more in Mayor Barry’s interest than independence and impartiality would require," he wrote. "For a prosecutor, there is the additional concern that, because a prosecutor must be an impartial 'minister of justice,' this other interest creating the conflict might lead the lawyer to act more adversely than independence and impartiality might require. Let me be very clear. Nothing in my opinion reflects any judgment that General Funk will actually do anything less than ethical or honorable in conducting the investigation of Mayor Barry."

Funk's office did not immediately have a comment.

Photo via Office of the Mayor