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Court Gives Reporters A Peek At GA Grand Jury Report On 2020 Election Interference. But Just A Peek.

If prosecutors are happy, then we're not going to get to see much.

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(Photo by Drew Angerer/Getty Images)

In June of 2022, a special purpose grand jury supervised by Fulton County, Georgia District Attorney Fani Willis began began investigating possible interference in the 2020 presidential election by allies of Donald Trump.

Although the jury’s work took place in secret, the DA’s enforcement actions against witnesses such as Rudy Giuliani, Michael Flynn, Mark Meadows, and Senator Lindsey Graham, as well as dozens of local politicians make it clear that the fake electors scheme was a focus of the panel. And testimony by Secretary of State Brad Raffensperger and his former deputy Gabriel Sterling was presumably centered on the former president’s infamous January 2, 2021, phone call where he pressured them to “find 11,780 votes, which is one more than we have, because we won the state.” (He did not win the state.)

The jury completed its work in December and issued a final report, which the panel recommended should be published. But because it was a special purpose grand jury, not a regular one, the issue of whether publication is mandatory was not at all clear. (See Lawfare for Anna Bower’s terrific post breaking down the relevant statute and precedents.)

Supervising Judge Robert McBurney held a hearing on January 24th at which media outlets urged full disclosure, citing the mandatory language of the special purpose grand jury statute. Unsurprisingly, the District Attorney took a different position, arguing that none of the report could be disclosed today without jeopardizing both her ongoing investigation and the due process rights of witnesses.

Yesterday, the court issued a Solomonic ruling, ordering publication of the report’s introduction and conclusion, as well as a section detailing jurors’ “concern that some witnesses may have lied under oath during their testimony to the grand jury.” The rest will remain sealed as of now to protect the due process rights of both witnesses and potential targets of the investigation, neither of whom were represented by counsel before the panel. Although, as the court notes, “every witness had the ability to pause the proceedings and consult with his or her lawyer outside the grand jury room — and that lawyer could then escalate concerns to the supervising judge if necessary (which some did quite liberally)[.]” Cough cough Lindsey Graham.

“The problem here, in discussing public disclosure, is that that book’s rules do not allow for the objects of the District Attorney’s attention to be heard in the manner we require in a court of law,” Judge McBurney wrote, adding later in the order that “[t]he consequence of these due process deficiencies is not that the special purpose ‘grand jury’s final report is forever suppressed or that its recommendations for or against indictment are in any way flawed or suspect. Rather, the consequence is that those recommendations are for the District Attorney’s eyes only — for now.”

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The language raises the tantalizing prospect that the panel recommended an indictment against Trump himself as the instigator of an attempt to interfere with the election in Georgia. Later, the court suggested that the panel may have found criminal violations by a party who did not appear: “This is particularly true if the grand jury’s final report includes recommendations involving individuals who never appeared before the grand jury and so had no opportunity, limited or not, to be heard.”

Indeed, many observers have speculated that the greatest potential danger to Trump lies in Fulton County. And he himself seems to have worked out that he might be in trouble here, predicting this morning on his own social media site that, in light of his bigly strong poll numbers “our weaponized Injustice Department, local D.A.’s, and Attorney Generals, will step up their illegal and unprecedented attacks in order to disparage me with false ‘bull….’ and statements in the hope that I will be damaged enough to allow a RINO, or Biden, to ‘slip through the cracks.’”

For her part, the DA appears to be satisfied with the ruling, which which orders her office to publish the excerpts on Thursday, February 16.

“I believe Judge McBurney’s order is legally sound and consistent with my request. I have no plans to appeal today’s order,” she told the Atlanta Journal-Constitution’s Tamar Hellerman, adding later that any charging decisions would be “legally imminent, not reporter imminent.”

Fulton judge: Portions of Trump grand jury report to be released this week [AJC]

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Liz Dye lives in Baltimore where she writes about law and politics.

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