The Atlanta Journal-Constitution and other news outlets are asking Georgia’s highest court to allow them to appeal a decision keeping under wraps most of a special grand jury’s report into possible criminal meddling in the 2020 election by former President Donald Trump and his allies.
“The report should be a public court record so that the citizens of the nation and this county can determine for themselves whether the future prosecutorial decisions of the District Attorney’s Office ‘do justice’ under Georgia’s laws,” said the application, filed Friday.
The media companies are asking the state Supreme Court to overturn a decision earlier this month by Fulton County Superior Court Judge Robert McBurney, who had rejected their request to make the totality of the final report public.
Joining the AJC are The Associated Press; Bloomberg; CMG Media Group and its station WSB-TV; CNN; Dow Jones & Co., publisher of the Wall Street Journal; The E.W. Scripps Co. on behalf of Scripps News; Gray Media Group and its station WANF; The New York Times; and Tegna and its station WXIA-TV.
In a recent interview with the AJC, special purpose grand jury forewoman Emily Kohls said the report recommends multiple people be indicted for criminal conduct. “It is not a short list,” she said, declining to name names. The jurors recommended their report be made public.
McBurney allowed three portions of the final report to be made public on Feb. 16: its introduction, its conclusion and a passage of the special grand jury’s concern one or more unidentified witnesses may have committed perjury.
Shielded from public view, for the time being, is “a roster of who should (or should not) be indicted, and for what, in relation to the conduct (and aftermath) of the 2020 general election in Georgia,” McBurney wrote in his order. He allowed about one-third of the nine-page report to be divulged.
McBurney rejected arguments from news outlets that the report is a court record and therefore subject to the public’s right of access. And he said the due process rights of those who are named were not protected by the special grand jury’s “one-sided exploration.” The judge added that “fundamental fairness” requires that section be kept under wraps for now.
District Attorney Fani Willis had asked McBurney to keep the report under wraps until she makes decisions whether to seek indictments — decisions that were “imminent.” After McBurney released his decision, she said she agreed with it.
In their request, the media outlets ask the state Supreme Court to act quickly on the appeal. “The Superior Court’s order should be corrected by this court on an expedited basis because it prevents the public from reading a report that is of paramount public concern,” Atlanta lawyers Tom Clyde, Lesli Gaither and Kurtis Anderson wrote.
They also restated their belief that the final report is a court record because there have been “at least three judicial determinations” made based on a judge’s review of the report. These are McBurney’s recommendation that the special grand jury be dissolved, his determination the grand jury did not exceed the scope of its mission and his determination that limited sections could be made public.
As to McBurney’s concerns about the due process rights of those being named, no lawyers for witnesses or targets appeared at the publicly noticed hearing on Jan. 24 so arguments could be made for and against the report’s release, the media lawyers noted.
The media’s application also cites a 1976 U.S. Supreme Court decision that held reputations of those accused of criminal conduct are not protected by due process rights.
In that case, police in Jefferson County, Ky., distributed hundreds of flyers to merchants in the Louisville metro area. It contained the names and photos of “active” shoplifters. One of them, Edward Charles Davis II, was a newspaper photographer who had once been charged but whose case was later dismissed.
The photographer sought damages against the police chiefs who distributed the flyers. But the U.S. Supreme Court rejected the photographer’s claims that what happened raised due process concerns. The court ruled “that the interest in reputation asserted in this case is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law.”
The high court’s decision in the Davis case was the precedent the House Select Committee investigating the Jan. 6th, 2021 attack at the U.S. Capitol used to justify he panel’s public release of criminal referrals to the U.S. Justice Department concerning Trump, former chief of staff Mark Meadows and lawyers Rudy Giuliani, John Eastman, Jeff Clark and Kenneth Chesebro, the media’s motion noted.
The motion also asked the state high court to allow the special grand jury’s final report to be filed under seal on the court’s docket to aid the justices’ review.
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