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Georgia judge hears arguments on releasing grand jury report on Trump and the 2020 election aftermath

By and , CNN
Published 5:03 AM EST, Tue January 24, 2023
Fulton County election workers examine ballots while vote counting at State Farm Arena on November 5, 2020, in Atlanta, Georgia.
CNN

A judge is set to hear arguments Tuesday on whether to publicly release a special grand jury report detailing Donald Trump and his allies’ efforts to upend the 2020 election in Georgia and its conclusions on whether the former president should face criminal charges.

The special grand jury, barred from issuing indictments, penned the highly anticipated final report as a culmination of its seven months of work, which included interviewing witnesses from Georgia Secretary of State Brad Raffensperger to former Trump attorney Rudy Giuliani.

Its final report is likely to include some summary of the panel’s investigative work, as well as any recommendations for indictments and the alleged conduct that led the panel to its conclusions.

Atlanta-area prosecutors are already poring over the report as they weigh whether to bring charges against Trump or his associates.

Judge Robert McBurney, who oversaw the special grand jury’s roughly seven-month investigation, called on Fulton County District Attorney Fani Willis ’ office and the media to offer arguments at a Tuesday hearing on whether the report should be released publicly and, if so, how much of it. While the panel of grand jurors recommended its report be made public, so far, the contents have been closely held.

A media coalition, which includes CNN, is expected to argue for the full report to be made public. The district attorney’s office has not said whether it will ask for the report to be held back in part or in its entirety.

Attorneys for Trump, meanwhile, said they won’t participate in Tuesday’s hearing.

“The grand jury compelled the testimony of dozens of other, often high-ranking, officials during the investigation, but never found it important to speak with the President,” Trump attorneys Drew Findling, Marissa Goldberg and Jennifer Little said in a statement. “Therefore, 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.”

A spokesman for the district attorney declined to comment ahead of the hearing.

For McBurney, there are only a few special grand jury examples to guide his decision-making on the report’s handling.

“Like everyone else I’m sitting around eating popcorn waiting to see what he’s going to release and what he’s not going to release,” said Robert James, who used a special grand jury to investigate local corruption when he was district attorney in Georgia’s DeKalb County.

“Quite frankly even when you look up case law on special grand juries, you’ll see it is a rarity,” said Peter Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia. “That’s why, you know, I think Judge McBurney is being very cautious, very deliberate how he approaches whether or not this report will be released.”

The judge will have to weigh the public’s interest in learning about efforts to interfere in the last presidential election against concerns that making the information public could hinder an ongoing investigation if the district attorney is pursuing indictments and that the release could disparage individuals who have not been charged with crimes.

“What you don’t want is an opportunity for a grand jury to make some allegation of criminal conduct that later on either can’t be proven or is unsubstantiated and the person hasn’t had a chance to clear his or her name,” Skandalakis said.

The path to indictments

The Georgia probe began soon after Trump phoned Raffensperger in January 2021, pressing the secretary of state to “find” the votes necessary for Trump to win the state. He lost the state to Joe Biden by nearly 12,000 votes.

“Our vote is as important as anyone else,” Willis told CNN in a 2022 interview. “If someone takes that away or violates it in a way that is criminal, because I sit here in this jurisdiction it’s my responsibility.”

Willis requested a special grand jury to investigate the case and the panel began its work in June 2022, calling a roster of witnesses that included Raffensperger, Giuilani, Georgia Gov. Brian Kemp and South Carolina Sen. Lindsey Graham.

In this file photo, Fulton County Judge Robert C. McBurney instructs potential jurors during proceedings to seat a special purpose grand jury, May 2, 2022, in Atlanta.

Over time, the investigation has expanded well beyond the Trump call to include false claims of election fraud to state lawmakers, the fake elector scheme, efforts by unauthorized individuals to access voting machines in one Georgia county and threats and harassment against election workers.

Along the way, Willis has designated a number of people as targets of her probe, including 16 Republicans who served as pro-Trump electors in 2020 and Giuliani.

But how much of that makes it into the final report was up to the special grand jurors.

“It’s important for people to know that the prosecutor’s office does not write the presentment, traditionally,” James said. “It literally is the will of the people.”

Now that Willis has the special grand jury’s report, it’s up to her to decide whether to go to a regular grand jury to pursue indictments. She’s not required to follow the exact recommendations laid out by the special grand jury, but its work product is likely to eventually become public and she could risk backlash if she runs too far afield of the panel’s suggestions.

Willis has previously said she could pursue Racketeer Influenced and Corrupt Organizations (RICO) charges in this case, which would allow prosecutors to bring charges against multiple defendants and make the case that Trump and his allies were part of a criminal enterprise.

Whatever her approach, she’s likely to face pressure to move expeditiously with indictments or close her investigation.

The level of pressure is “all encompassing,” said James, who predicted Willis would marshal her resources and get her case trial-ready before she seeks any indictments.

“The spotlight is hot,” James said. “You can’t afford to lose a case like this right?”

Prior special grand jury reports offer hints of what to expect

Prior special grand jury reports have laid out a narrative of the panel’s investigation and concluded with recommendations.

The 2013 special grand jury James worked with issued a roughly 80-page report, but it was only released publicly after a months-long court fight.

The DeKalb County panel’s investigative summary referenced testimony and documents provided to the grand jury. Tacked on to the end of the report was a list of all the witnesses who appeared. The grand jurors ultimately referred one person for indictment – who fought the report’s public release – and nearly a dozen others for further investigation, laying out the infractions in each case that led them to their conclusions. They also recommended a variety of government reforms.

A 2010 report from a special grand jury in Gwinnett County summarized its investigative activity surrounding local land acquisition deals and indicted one public official, though the indictment was later overturned when a court ruled that special grand juries could not issue indictments.

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