Final report of Georgia grand jury investigating Trump may be released soon

The Washington Post / Holly Bailey

12:26 JST, January 24, 2023

ATLANTA – For the better part of eight months, they gathered inside the Fulton County Courthouse, reviewing evidence in a sprawling criminal investigation into whether former president Donald Trump and his allies broke the law when they sought to overturn Trump’s 2020 election loss in Georgia.

Now, the findings of the 26-member special-purpose grand jury could soon be released.

Two weeks after declaring the grand jury’s work complete and dissolving the panel, Fulton County Superior Court Judge Robert McBurney has scheduled a hearing Tuesday to determine whether to make its final report public.

That debate is likely to draw conflicting views. Fulton County District Attorney Fani T. Willis (D) is expected to pursue charges and could argue for parts, if not all, of the report to be unsealed in coming weeks. Attorneys for those who have been notified they are targets of the investigation, meanwhile, are likely to press McBurney to keep the report private indefinitely.

That group will not include attorneys for Trump, who said in a statement Monday that the former president was “never subpoenaed nor asked to come in voluntarily by this grand jury or anyone in the Fulton County District Attorney’s office.”

“We can assume that the grand jury did their job and looked at the facts and the law, as we have, and concluded there were no violations of the law by President Trump,” read the statement issued by attorneys Drew Findling, Marissa Goldberg and Jennifer Little, Trump’s Georgia-based legal team.

Meanwhile, a coalition of media organizations filed a 109-page brief Monday urging McBurney to unseal the report, calling it a “matter of profound public interest that goes to the heart of the nation’s democratic forms of government.”

While McBurney is not expected to immediately rule on the report’s release, the hearing is likely to herald a new chapter in a criminal inquiry that could present fresh legal peril for Trump and his allies. The report’s potential release comes against the backdrop of other investigations into alleged efforts by Trump and his supporters to subvert the 2020 election results in key battleground states.

Last month, the U.S. House committee investigating the Jan. 6, 2021, attack at the U.S. Capitol issued its final 800-plus-page report, which cited evidence from thousands of documents and more than 1,000 witness interviews. The committee was not conducting a criminal investigation, and its conclusions therefore have no legal bearing. Still, it argued that Trump, with the help of allies, orchestrated a plan to stay in office despite his election loss.

In recent weeks, a special counsel appointed by Attorney General Merrick Garland issued subpoenas to election officials in states including Georgia, as well as Trump campaign associates, as part of a Justice Department inquiry into the efforts Trump and his allies undertook to reverse his 2020 defeat.

In Fulton County, Willis will decide whether to criminally charge Trump or his allies. But her decision will be heavily influenced – and perhaps given political cover – by the findings of the Atlanta-area residents randomly selected in May to serve on the special grand jury.

The investigative body of 23 jurors and three alternates picked from a pool of residents from Atlanta and its suburbs was given full subpoena power for documents and the ability to call witnesses. The jurors’ identities have not been made public – and may never be.

From June to December, a litany of prominent Republicans appeared before the committee, including Georgia Gov. Brian Kemp, Sen. Lindsey O. Graham (S.C.) and former New York mayor Rudy Giuliani, along with dozens of other witnesses – including some who have not previously given public testimony on what they knew about Trump’s efforts to overturn the election.

“We are talking about citizens, not experts or bureaucrats,” said Danny Porter, a former district attorney from Gwinnett County, north of Atlanta, and one of the few prosecutors in Georgia to have convened a special grand jury as part of an investigation. “Whatever they say, that adds a sense of credibility to it.”

The content of the report has been hotly debated across Atlanta, where those closely tracking the Fulton County investigation have likened the guessing game over the grand jury’s work to watching for smoke signals from the Vatican, the method used by Catholic cardinals to alert the public whether a new pope has been chosen.

Willis, a longtime Fulton County prosecutor who was elected as district attorney in 2020, launched her investigation into alleged election interference days after a recording was made public of a January 2021 phone call Trump made to Georgia Secretary of State Brad Raffensperger urging him to “find” enough votes to overturn his defeat in Georgia. It was one of several calls Trump and his associates made to Georgia officials prodding them to undertake efforts that would change the results of the state’s presidential election, which Trump lost by fewer than 12,000 votes.

In the two years since, Willis has indicated publicly and in court filings that her office’s investigation has expanded to include several other lines of inquiry, including false claims of election fraud that Giuliani and other Trump associates made to Georgia state lawmakers; threats and harassment against Georgia election workers; and alleged efforts by unauthorized individuals to breach election data from voting machines in Coffee County, Ga.

Another intense focus of Willis’s inquiry has been the creation of an alternate slate of Republican electors who met at the Georgia Capitol in December 2020 and signed certificates falsely claiming Trump had won the election in Georgia. In court filings, attorneys for the “fake electors” have said their clients were merely acting to preserve Trump’s rights amid a lawsuit seeking to overturn the Georgia election results, which had already been certified by the state.

But those actions have drawn scrutiny from state and federal investigators – including Willis – who are examining the larger coordinated plan behind it, including the involvement of Trump, the former president’s attorneys and top advisers as well as state and local Republican operatives. They are also investigating whether the “fake elector” scheme was intended to disrupt the transfer of power during Congress’s certification of the presidential election votes.

In court filings, Willis has described her investigation as an examination of “multi-state, coordinated efforts to influence the results of the November 2020 elections in Georgia and elsewhere.” She has publicly said that she is not only looking at potential violations of state law, but also criminal conspiracy – hinting that she may employ Georgia’s expansive statute on racketeering to prosecute the case, as she has in other high-profile trials in Fulton County, including an ongoing case against the rap artist Young Thug.

In September, Willis told The Washington Post that her team had found credible allegations that crimes had been committed. “If indicted and convicted, people are facing prison sentences,” Willis said.

At least 18 people have been notified they are targets of the election interference investigation, according to court documents and statements from their attorneys. That list includes Giuliani, who was serving as Trump’s lawyer at the time, and all the alternate Republican electors – a group that includes David Shafer, chairman of the Georgia Republican Party.

Willis’s office has not said whether Trump is a “target” of the Fulton County investigation, which the former president has called a “witch hunt.”

On Monday, Trump’s Georgia-based legal team, in a statement, implied there had been no formal contact between the former president and his legal team and Fulton County prosecutors. “We have never been a part of this process,” the attorneys said. But they did not immediately respond when asked if Trump had been given notice that he’s a target of the investigation.

But Tuesday’s hearing on the special grand jury report could offer some additional clarity, as attorneys for potential targets are expected to appear in court to make arguments about whether the document should be released, even as they have not been privy to what it says.

Currently, the only people who have had access to the report are the jurors; McBurney, who oversaw the panel; members of the Fulton County bench who were given the option of reading the report before they voted to disband the grand jury; and Willis and her prosecution team.

The Jan. 24 hearing is scheduled exactly one year after the chief judge of the Fulton County Superior Court approved a request from Willis to seat a special grand jury – a prosecutorial move that has been rarely used in Georgia.

Under Georgia law, special grand juries are distinct from regular grand juries because the panel can focus extensively on a specific investigation for a longer time. A special grand jury cannot issue indictments, but it can publish a report of its findings along with recommendations.

In his order dissolving the special grand jury and scheduling a hearing over its report, McBurney said the panel had “certified that it voted to recommend that its report be published” and pointed to a provision in Georgia state law that suggests the request to release its findings is “mandatory.”

But McBurney also invited debate on whether the special grand jury’s report “constitutes a presentment” under that same Georgia law – a legal term of art typically used to describe a report that recommends indictments, which the Fulton County panel cannot do. The judge also pointed to a 1961 Georgia appeals court decision that found grand juries cannot “impugn” or suggest misconduct of a public official unless those accusations are included in an indictment.

“I think Judge McBurney is trying to be very cautious. . . . You can’t make allegations, or you can’t charge somebody with criminal conduct in a grand jury report without an indictment. You can say, we think this deserves further investigation, but you can’t go farther than that,” said Peter Skandalakis, a former district attorney who now heads the Prosecuting Attorneys’ Council of Georgia, which advises and sets policies for prosecutors around the state.

But Skandalakis also suggested the judge is navigating a legal issue for which there is little precedent in Georgia. “Special grand juries are a rarity in Georgia,” he said, adding that he could find only four or five cases in which they had been used. “Even people in the legal community are asking, ‘How much of this report will be public, and what will it say?'”

Willis has not publicly stated what her office’s argument will be in terms of making the report public. A spokesman for the district attorney declined to comment. But people close to Willis, who spoke on the condition of anonymity to discuss private conversations, said they believed she was likely to argue for the report to remain private until potential charges are filed. Others have suggested she might push for the report to be released but with specific recommendations on charges redacted.

What is unknown is whether the grand jury uncovered new information or whether the report simply repeats what has been reported publicly, including the testimony and documents released by the Jan. 6 committee – a distinction that is likely to figure in McBurney’s thinking as he weighs whether the special grand jury’s report potentially “impugns” anyone named in it.

Porter, who used a special grand jury to investigate corruption in public land deals, said he believes special grand juries should be able to publicly recommend charges in a report because they are investigative bodies – even if they cannot formally issue indictments. And he said however McBurney handles the report could set precedent for how future prosecutions unfold in the state.

“What this reminds me of is those old movies where they come to the edge of the woods, and it’s unexplored territory. And that’s really where we are at this moment. There’s more questions than answers about how this will all play out,” Porter said.

What is clear is that aspects of the Fulton County grand jury investigation have been unusually public for legal proceedings that are typically shrouded in secrecy. While courtroom testimony before the panel has been private, the clues to the direction of the investigation and who was summoned before the panel have been revealed in court documents, including subpoenas.

In May, McBurney made the unusual decision of opening the courtroom to the news media, including television cameras, to allow public observation of the jury selection process. Though cameras were not allowed to show the faces of potential jurors, they could be heard answering the judge as he questioned whether they felt they had a “conflict” with hearing the case or were “ready to serve.”

“I decided that transparency was paramount, and as long as that did not conflict with grand jury secrecy rules, we were going to make it as open as possible,” McBurney said in an interview. “The real obvious bright line is what goes on in front of the grand jury. There are no cameras, no coverage.”

Not everyone agreed with his decision, McBurney said, but he said he felt that being as open as possible about something the public rarely sees – the selection of grand jurors – was important for a case drawing both intense local and national attention.

Two-hundred potential jurors were summoned that first day, with 200 more called to appear the next day – amid concerns by the court and prosecutors that they might not be able to find jurors who could be impartial or commit to the time requirement – two or three days a week for upward of year. To the surprise of almost everyone in the courtroom, a majority of the first 100 people questioned said they were “ready to serve.” The final panel was selected within hours – the number of the last juror picked was 35.

Those familiar with the investigation describe the jurors as active participants – including requesting and asking questions of witnesses. Though prosecutors from Willis’s office presented their case before the panel, the people said the jurors – not the judge or prosecutors – wrote the jury’s final report.

In his order dissolving the panel, McBurney praised the jurors for their hard work and “sacrifice.” Unlike a regular grand jury, for which the names of jurors are eventually made public in the court record, there is no such requirement for a special grand jury, which means the names of those who served will probably never be made public – even though jurors will eventually be allowed to speak about their work, for which they were paid $25 a day.

Perhaps the biggest unknown beyond the grand jury’s findings is how Willis will use the report and how quickly charges, if they are filed, could come. To charge someone, Willis would have to present her case to a regular grand jury that has the power to issue criminal indictments.

In Fulton County, grand juries’ terms begin every two months, with a panel seated this month. Some have questioned whether Willis is already presenting her case – or whether she’ll wait until a new grand jury is seated in March because of legal rules that allow a defendant to request a speedy trial within two months of the end of the term in which they are indicted.

“One of the biggest questions is how she will sell this – not just to the people of Fulton County or the people of Georgia. She’s going to have to tell people all across the country why she is pursuing this and jettison any idea or criticism that this is partisan or political,” said Anthony Michael Kreis, a Georgia State University law school professor.

Both Trump and Willis are expected to be on the ballot in 2024 – the former president seeking to reclaim the White House and the district attorney in pursuit of her second term as the lead prosecutor in Fulton County.

“That’s why I think she will move quickly,” Kreis said. “To let this linger, even an extra month, inches this closer to the 2024 election . . . And it comes more and more political. And I think she is mindful of that [because] her legitimacy and the legitimacy of the justice system is on the line.”