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A Georgia judge weighs release of a grand jury report into 2020 election interference

In this May 2022 file photo, Fulton County Superior Court Judge Robert McBurney speaks during proceedings to seat a special purpose grand jury in Fulton County, Ga., to look into the actions of former President Donald Trump and his supporters who tried to overturn the results of the 2020 election.
Ben Gray
/
AP
In this May 2022 file photo, Fulton County Superior Court Judge Robert McBurney speaks during proceedings to seat a special purpose grand jury in Fulton County, Ga., to look into the actions of former President Donald Trump and his supporters who tried to overturn the results of the 2020 election.

A Georgia judge will soon decide what, if any, parts of a special grand jury report will be made public following an eight-month investigation into efforts by former President Donald Trump and his allies to overturn the state's 2020 election results.

The special purpose grand jury, which was dissolved earlier this month after completing its work, did not have indictment powers but could use gathered evidence and testimony to recommend that Fulton County District Attorney Fani Willis seek charges. Several people, ranging from Trump's onetime personal attorney to Republicans who falsely claimed to be presidential electors, were informed they were targets of the investigation.

Jurors voted to release their report to the public, but the extremely rare nature of the special grand jury and limited legal authority have led to hurdles that could delay disclosure of the findings.

Fulton County Superior Court Judge Robert McBurney will hold a hearing Tuesday to determine if releasing all or parts of the report would conflict with other laws and precedents that have historically prevented grand jury reports from making allegations of criminal wrongdoing without an accompanying indictment — which this panel could not recommend.

At the hearing, the DA's office, media outlets and potential targets of the investigation that might be named in the report are expected to argue their cases for releasing — or redacting — relevant sections of the findings.

What could be in the report?

Georgia was one of several key states that saw a coordinated, sustained effort to challenge the 2020 presidential results, in which Joe Biden defeated Trump.

In February 2021, Willis announced an investigation into efforts to undo Trump's defeat in Georgia, asking state officials to preserve records from the election, and in January 2022 she requested a special purpose grand jury be convened to investigate "the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia."

At the time, Willis listed several potential crimes, ranging from solicitation of election fraud to making false statements to governmental officials to racketeering.

Broadly, the work of the 26-person panel centered around two major themes:

  • the pressure campaign to reverse Trump's roughly 12,000-vote loss in Georgia's thrice-counted election;
  • and the coordinated effort to send so-called "alternate" slates of Republican presidential electors in states won by Biden.
  • The most infamous example of the former is Trump's phone call to Republican Secretary of State Brad Raffensperger, exhorting him to "find 11,780 votes" and undo Biden's victory ahead of the counting of Electoral College votes.

    There were other calls, too, like South Carolina Sen. Lindsey Graham's conversation with Raffensperger regarding absentee ballots, and another leaked call Trump had with Georgia's top election investigator about a review of ballot envelopes.

    Other areas of interest that have appeared in court filings include: a number of unofficial legislative hearings where Rudy Giuliani and others spread falsehoods about the state's election system and results, and attacked a pair of Fulton County poll workers with baseless claims that led to death threats; the resignation of U.S. Attorney BJay Pak amid turmoil with the Justice Department over pursuing false claims of voter fraud; and unauthorized access of voting equipment in a rural Georgia county.

    Rudy Giuliani arrives at the Fulton County Courthouse in Atlanta on Aug. 17, 2022, to testify in front of a special grand jury investigating whether then-President Donald Trump and his allies illegally tried to overturn his defeat in the 2020 election.
    John Bazemore / AP
    /
    AP
    Rudy Giuliani arrives at the Fulton County Courthouse in Atlanta on Aug. 17, 2022, to testify in front of a special grand jury investigating whether then-President Donald Trump and his allies illegally tried to overturn his defeat in the 2020 election.

    On the second front, Willis and the special purpose grand jury appear to have narrowed in on the efforts across multiple swing states, including Georgia, to send documents from Republicans falsely claiming to be official presidential electors.

    At least 17 people so far have been informed they could be prosecuted for their actions, including the 16 fake electors and Giuliani. Willis has been disqualified from investigating one of the sham electors, newly elected Lt. Gov. Burt Jones, after Jones argued a fundraiser that Willis hosted for his eventual general election opponent created a conflict of interest.

    The report could also name other incidents that prosecutors should look into further, other people who should be interviewed and other crimes that might have been committed.

    Who has been interviewed?

    The special grand jury used subpoena power to compel dozens of people to testify over the last several months, though faced difficulties from out-of-state witnesses.

    Georgia Gov. Brian Kemp, Attorney General Chris Carr, Raffensperger and other state employees appeared before the panel, as did local election officials and elected officials who played both large and small roles in defending, running or attacking the election.

    Some subpoenaed witnesses — like Trump-aligned attorneys John Eastman, Jenna Ellis and Kenneth Chesebro — tried unsuccessfully to fight their testimony in court but ultimately had to appear. Sen. Graham's efforts to halt his testimony were argued all the way to the U.S. Supreme Court, which refused to block a lower court's ruling that Graham was protected from questioning about activities related to being a lawmaker but could answer for other statements and actions.

    Giuliani — who is also being sued for defamation by the two Fulton County election workers he accused of fraudulently counting ballots and "surreptitiously passing around USB ports as if they are vials of heroin or cocaine" — testified for hours behind closed doors after failed attempts to delay his appearance before the grand jury.

    The report could also shed light on others who testified without needing a subpoena, as well as evidence used to draw conclusions about potential violations of state law.

    What about Trump?

    One potential witness who was never issued a subpoena to testify is Trump himself. Many of his actions and statements were in the public domain, uncovered via reporting or shared through testimony from others, but it is unclear why the panel did not seek out Trump's testimony firsthand, as he is a central figure in the investigation.

    It is not clear what the report will say about Trump's role or likelihood he could face charges, though Trump has retained several Georgia-based lawyers including Drew Findling, a high-profile attorney best known for defending celebrity rap artists (and for past anti-Trump comments on social media). Campaign finance records show that over the second half of 2022, pro-Trump political action committees paid out nearly half a million dollars for "legal consulting" to Findling's law firm and another attorney, Jennifer Little.

    In a statement to the Atlanta Journal-Constitution Monday, Trump's attorneys said they would not be involved in Tuesday's hearing and have never been a part of the special grand jury process. "He was never subpoenaed nor asked to come in voluntarily by this grand jury or anyone in the Fulton County District Attorney's office," the statement reads in part. "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."

    But it is possible the report could still implicate the former president in wrongdoing, and the district attorney could still seek an indictment.

    What's next?

    After the hearing, Judge McBurney could rule that the report should be made public in its entirety, with redactions regarding specific people and specific laws they might have broken, or opt to keep the entire thing under wraps pending further review.

    Any of those rulings could be appealed.

    The district attorney's office has received the full report and can issue indictments through a regular grand jury process with or without the report being publicized. Willis might also push to keep the report from the public until her office makes decisions about charges.

    Fulton County's investigation into election interference is one of several inquiries Trump is facing, along with a federal probe into classified documents found at Mar-a-Lago and Trump's role in the leadup to the Jan. 6 attack on the U.S. Capitol, and New York-based investigations into Trump's business empire.

    Copyright 2023 Georgia Public Broadcasting

    Stephen Fowler is the Producer/Back-Up Host for All Things Considered and a creative storyteller hailing from McDonough, Georgia. He graduated from Emory University with a degree in Interdisciplinary Studies. The program combined the best parts of journalism, marketing, digital media and music into a thesis on the rise of the internet rapper via the intersectionality of social media and hip-hop. He served as the first-ever Executive Digital Editor of The Emory Wheel, where he helped lead the paper into a modern digital era.