The Georgia district attorney investigating former President Donald Trump in a wide ranging probee over a wide-ranging probe of 2020 election-related crimes urged a judge not to release a special grand jury’s report that could recommend prosecution.
“In this case, the state understands the media’s interest and the world’s interest — but we have to be mindful of protecting future defendants’ rights,” Fulton County District Attorney Fani Willis (D) declared on Tuesday.
“Thou Shalt Not Disclose”
Fulton County Superior Court Judge Robert McBurney said at the beginning of the hearing that the jury voted for the report to be public, though he said that this determination did not end the matter.
The judge also noted that there is no rule that he needs to keep the report under wraps to protect the rights of future defendants.
“I see nothing that says, ‘Thou shalt not disclose,’” McBurney noted.
By design, McBurney noted, the special grand jury cannot issue indictments, only findings disseminated in a written report.
“Special purpose grand juries are different. They last longer. They investigate in a different way. They cannot hand down a bill of indictment. or anything like that. But in lots of ways, they’re grand juries,” the judge stated.
A separate panel or panels, however, could determine whether to follow through on the special grand jury’s recommendations.
The day before the hearing, more than a dozen print and television news outlets filed a 19-page legal brief — with 90 pages of attachments — calling for that report to be made public.
“The public interest in the Report is extraordinary, and there are no countervailing interests sufficient to overcome the presumption,” lead attorney Thomas M. Clyde wrote.
The news organizations include The Atlanta Journal-Constitution, ABC, The Associated Press, Bloomberg, CNN, WSB-TV, The Wall Street Journal, USA Today, the Athens Banner-Herald, The Augusta Chronicle, the Savannah Morning News, WANE, The New York Times Company, WXIA-TV, and Yahoo News — as well as certain of their parent companies.
They want the report to be released in full, unredacted form.
“There is no basis for sealing here,” the brief concludes. “This investigation has been a matter of profound public interest that goes to the heart of the nation’s democratic forms of government. Much of the matters before the special purpose grand jury are already public knowledge through related federal and state court proceedings and Congressional hearings. There is quite simply no ‘clear and convincing proof’ that sealing, either in whole or in part, is warranted.”
In order to unseal the report, Judge McBurney would have to determine that it qualifies as a “judicial document,” and Clyde argued during the hearing that it fit the bill.
“This is a judicial process,” said Clyde, adding that it is an “extraordinary” one.
“It Is Premature”
Since opening more than a year ago, the special grand jury investigation has roped in prominent figures in Trump’s orbit, including former New York City mayor Rudy Giuliani, ex-aide and pundit Boris Epshteyn, Sen. Lindsey Graham (R-S.C.), and others. Some Trump allies resisted subpoenas, leading to protracted litigation.
One of the key states where Trump tried to overturn the 2020 election, Georgia is where the former president told Secretary of State Brad Raffensperger (R) to “find” 11,780 votes to swing the election in his favor. Trump and his allies also used a fake-elector scheme and other gambits for overturning his loss to President Joe Biden.
Potential charges could be wide-ranging. Experts from Brookings Institution, a centrist think-tank, found that found that Trump’s post election conduct in Georgia put him at “substantial risk of possible state charges predicated on multiple crimes,” including criminal solicitation to commit election fraud, intentional interference with performance of election duties, conspiracy to commit election fraud, criminal solicitation, and state Racketeer Influenced and Corrupt Organizations (RICO) Act violations. The latter crime would involve a multiple defendant case.
Another prosecutor with Willis’s office, Donald Wakeford, remained tight-lipped on its contents, except through a cryptic statement.
“Everything about this report indicates that it is premature to release the report at this time,” Wakeford said.
Judge McBurney pointedly asked what would prevent a special purpose grand juror from reaching out to the press. The judge offered a fanciful hypothetical in which the special grand jury recommended the prosecution of Oscar the Grouch, the beloved, cantankerous Sesame Street character who lives in a trash-can.
The green monster, having been recommended for prosecution for “treason,” could lawyer up and convene a press conference to oppose the findings.
The judge asked what hypothetical harms to an investigation could follow that sequence of events.
“I’m not totally sure,” Wakeford responded. “But we can avoid that question entirely by not publicizing the report.”
“Why tangle with it if you don’t have to?” McBurney asked.
“Exactly,” Wakeford said.
After roughly 90 minutes of oral arguments, McBurney ended the hearing without a ruling. He said he will make “no rash decisions” before releasing the report, giving all parties an opportunity to respond to his eventual ruling or prepare for its ramifications.
Update—Jan. 24 at 12:45 p.m. ET: This story has been updated to include more details from the ongoing hearing, as well as relevant background.
Update—Jan. 24 at 1:20 p.m. ET: More details from the hearing added.
This is a developing story.
Have a tip we should know? [email protected]