All eyes on Fulton special grand jury as it drafts final report

Jurors can recommend whether Trump, others should be indicted

After meeting for more than seven months, sifting through mountains of evidence and hearing testimony from dozens of witnesses, the 23 members of the Fulton County special grand jury are expected to soon issue a final report detailing their findings and recommending next steps.

The jurors are tasked with helping Fulton District Attorney Fani Willis determine whether former President Donald Trump or his allies broke any state laws as they sought to overturn Georgia’s 2020 election results.

Their final report, known as a special presentment, could be finalized within weeks. And while it will ultimately be up to Willis to decide whether anyone should be charged with a crime, the special grand jury has an important role to play in synthesizing its investigation and making any “recommendations concerning criminal prosecution as it shall see fit,” according to its authorization.

Norm Eisen, who has closely tracked the probe for the Brookings Institution in Washington, is expecting the special presentment will answer three major questions: What happened? Who should be charged? And, if so, with what crimes?

“I’m expecting a narrative of wrongdoing that is Georgia-centered, that focuses on two main lanes of activity,” said Eisen, who served as President Barack Obama’s ethics czar and special counsel to the House Judiciary Committee during Trump’s first impeachment. “First, the pressure to produce fake electoral results, highlighted by (Trump’s call to Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021), but much more to it. Second, the pressure to produce fake electoral slates.”

Credit: Jason Getz / Jason.Getz@ajc.com

Credit: Jason Getz / Jason.Getz@ajc.com

‘Not a product’ of the DA

Georgia law outlines little about what should and should not be included in the final report.

What is clear is that a majority of jurors must agree on any findings or recommendations to be included in the report. Presentments can be very detailed or quite short: a 2012 special grand jury that investigated DeKalb County’s Department of Watershed Management contracts filed an 81-page report, while a Gwinnett jury’s analysis of land acquisitions by the county board of commissioners clocked in at 24 pages in 2010.

This time, observers are expecting a longer document since the Fulton inquiry involves a polarizing former president who’s also being investigated by the Justice Department.

“This has become their job, and I’m certain everybody in there understands the gravity of it,” said former DeKalb DA Robert James. “So expect to see a long and detailed presentment and perhaps even some bombshells.”

When jurors are done writing their report, they’ll turn it over to Superior Court Judge Robert McBurney, who’s overseeing the grand jury. When McBurney decides the jury has satisfied its obligations, he’ll recommend to Chief Judge Ural Glanville that the grand jury be dissolved. Glanville would then report the recommendation to the other Fulton judges and, if a majority agrees, the grand jury will be disbanded.

Only once approved by the Fulton bench would the presentment be turned over to the DA’s office for potential prosecution. But, as the grand jury’s legal adviser, prosecutors are often heavily involved as jurors write their final report.

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

“Ultimately, I would be surprised if (Willis) is not aware of what’s going to be in that presentment or how it’s going to read,” said James, who advised the 2012 special grand jury probing corruption allegations in DeKalb’s water department. “But do the grand jurors need the DA’s permission? No. Is the DA able to tell them, ‘I don’t want y’all to put this in there?’ No. This is not a product of the DA’s office.”

Some version of the report — or at least portions of it — are expected to be made public at some point, though there could be a delay as McBurney reviews it to see if any redactions or changes are necessary. In DeKalb, the foreman of the 2012 special grand jury ultimately sued the judge overseeing the probe to force him to make the report public, which he did some seven months after it was written. In Gwinnett, a judge kept a presentment under wraps because it recommended indictments of named county commissioners.

Some special grand jury reports have been kept under seal or redacted because of a 1961 Georgia Court of Appeals decision addressing a special presentment by a Fulton grand jury. In that ruling, the court said a “grand jury has no right ... to return a report charging or casting reflections of misconduct in office upon a public officer or impugning his character,” except through an indictment.

‘Fist fights’ to come

Willis’ office has faced resistance in recent months from hostile witnesses seeking to kill their subpoenas. James said more challenges could be ahead as people expecting to be named in the special presentment launch eleventh-hour fights to strike their portions of the report or at least delay its release.

“They’re not going to just roll over and say, ‘oh yeah, publish this thing and say what you want to say about me,’” said James. “So we haven’t seen the end of the fist fights. As a matter of fact, we probably haven’t seen the worst fist fights yet.”

No targets or witnesses have mounted any challenges so far. (Prosecutors previously informed the 16 GOP electors, Trump’s former personal attorney Rudy Giuliani and Dallas-based lawyer and podcaster Jacki Pick that they could be charged as a part of the investigation.)

Among those closely watching the presentment is Pete Skandalakis, the executive director of the Prosecuting Attorneys’ Council of Georgia. His organization has been tasked with deciding what to do next with Lieutenant Gov.-elect Burt Jones, who served as a fake elector and was previously sent a so-called “target” letter but won a legal challenge disqualifying Willis and her office from investigating him.

Skandalakis has indicated he’ll wait and see what the presentment includes about the electors before deciding whether to appoint a special prosecutor to look into Jones.

Credit: Jonathan Phillips

Credit: Jonathan Phillips

“I would like to read what that report says,” he said. “And I’m sure any prosecutor who comes along in an appointed capacity would also like to know what the special grand jury heard and what they thought was important.”

A decade ago, the DeKalb special grand jury uncovered possible cronyism, shakedowns and irregular spending from then-county CEO Burrell Ellis down the personnel chain after a year-long probe. James subsequently obtained an indictment against Ellis and his conviction, which was later overturned on appeal.

James, who lost his reelection bid a few years later, said regardless of what the Fulton grand jurors decide, Willis will need to follow the evidence and her ethical obligations.

“What DA Willis is going to have to understand is that whatever she does, some folks are going to be extremely unhappy with her,” he said. “Once you pull this trigger and start this process, you have to be resigned that you’re going to be unpopular, perhaps to some people forever in certain segments of your community.”