Also unknown is whether Willis will ultimately choose to indict Trump, his former aides or anyone else for pressing to overturn Democrat Joe Biden’s narrow win here just over two years ago.
In other words, the Fulton courthouse could be at the epicenter of a national media feeding frenzy for all or part of 2023 — or it could be eerily silent for months or even longer.
“We’re into a really interesting area of the law,” said Danny Porter, who advised a special grand jury when he was Gwinnett County’s DA. “We haven’t really had to face a lot of these questions over the years.”
Fulton Superior Court Judge Robert McBurney, who’s overseen the Fulton special grand jury, has scheduled a Jan. 24 hearing, during which the DA’s office, the news media and, presumably, targets of the investigation will argue whether the report should be released.
The jurors recommended that their report be published, McBurney said.
No impugning of character
Seated in May 2022, the special grand jury was authorized to “investigate any and all facts and circumstances relating directly or indirectly to alleged violations of the laws of the State of Georgia.” It was also told to summarize its findings in a final report, sometimes known as a special presentment, and that it could “make recommendations concerning criminal prosecution” as it saw fit.
Among the topics jurors probed were the Jan. 2, 2021 phone call between Trump and Georgia Secretary of State Brad Raffensperger; the appointment of a slate of “alternate” Republican electors; efforts to pressure a Fulton poll worker to falsely claim she committed election fraud; and the breach of elections data in Coffee County.
Special grand juries, which meet for longer periods than regular grand juries and are focused on a single issue, are a rarity in Georgia. That means there isn’t much legal precedent to follow. But some previous court decisions indicate that not everything in the report will likely be made public right away.
Ahead of the hearing on the 24th, McBurney asked stakeholders to address a 1961 state appeals court decision. That ruling stated that a grand jury has no right, in the absence of specific statutory authority, to issue a report suggesting misconduct or impugning the character of a public official — unless such accusations are included in an indictment. If there’s no indictment, “it is the right of one who is the subject of such extra-judicial report to have it expunged from the official records,” the 1961 decision states.
This Fulton special grand jury does not have indictment powers.
There are examples of final presentments being scrubbed before their release.
The Georgia Court of Appeals told a Floyd County judge to remove language in a 1996 grand jury report that questioned the character of then-Georgia Attorney General Mike Bowers and his office. Something similar happened less than a decade later in DeKalb County. That’s when the appeals court upheld a judge’s decision to strike out language in a presentment that was critical of then-CEO Vernon Jones and other county officials. It also upheld a decision by the judge overseeing the special grand jury to place its proposed report under seal.
It will ultimately be up to McBurney to decide how much of the Fulton special grand jury’s report will see the light of day. His ruling, however, could be appealed.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
What can be redacted?
Legal experts disagree about whether special grand jurors in this case have the authority to name names and particular crimes that may have been committed in their report.
Pete Skandalakis, a former DA who now heads the Prosecuting Attorneys Council of Georgia, said jurors that do so would be going too far and that McBurney should redact their recommendations in the presentment before it’s released.
“No grand jury is allowed to do that,” he said.
Instead, the body, if it believes a crime has been committed and that people should be indicted, should only recommend more broadly that the DA pursue the investigation further for possible criminal violations, Skandalakis added. (The Prosecuting Attorneys Council is currently tasked with deciding whether Lt. Gov. Burt Jones should be investigated by a special prosecutor, since Willis was disqualified from examining Jones’ role as a fake GOP elector. Skandalakis previously indicated he will wait to see what’s in the grand jury’s final report before making any decisions.)
Porter, a Republican who lost his reelection bid in 2020 after nearly three decades in office, sees things another way.
“That’s what they exist for, to investigate into whether laws regarding the elections in Georgia were violated,” he said of the Fulton special grand jury. “So if they make that recommendation, depending on how it’s written and (if it’s) supported by evidence, and then they conclude with saying ‘based on this, we recommend indictment,’ then I think that’s not a redactable statement.”
Credit: Natrice Miller/AJC
Credit: Natrice Miller/AJC
Still unclear is whether the DA’s office will argue to keep the report private in order to leave its legal options open without the full glare of the media spotlight. Or if Willis sees value in making public at least portions of the presentment. A Willis spokesman declined to comment.
Porter said there are many reasons why Willis would want to keep the report mostly confidential, including the potential for witness intimidation or the disclosure of previously unknown sources.
Regardless, the DA now has the ability to pursue an indictment whenever she wants, including ahead of the hearing on the 24th, though legal experts see that as highly unlikely.
Former DeKalb DA Gwen Keyes Fleming said to expect Willis to stick to the book should she pursue any charges.
“If it’s possible to keep it buttoned up and tight, then I think that’s what she might do,” said Fleming, the co-author of a Brookings Institution report that analyzed the publicly available evidence in the Fulton inquiry.