Instead of chastising forewoman Emily Kohrs for her ill-advised media blitz, Judge Robert McBurney has effectively given it his public endorsement.
Instead of chastising forewoman Emily Kohrs for her ill-advised media blitz, Judge Robert McBurney has effectively given it his public endorsement.
W hen Emily Kohrs, the oddball forewoman of the Georgia special grand jury investigating former president Trump’s 2020 campaign, had her 15 minutes of fame last week, I was hopeful that the state judge supervising the grand jury had quietly admonished her. These hopes were reasonable, because after the brief flurry of interviews she did for anti-Trump torch-bearers of the media–Democrat complex, and the resulting angst of talking heads over her (cluelessly unintentional) undermining of the potential for a Trump prosecution, Kohrs was not heard from again. It seemed like someone must have told her to pipe down — probably someone, such as Judge Robert McBurney, who was also poised to discourage other grand jurors from seeking their own moments in the sun.
But alas, Judge McBurney does not seem like that kind of guy.
Playing the Kohrs-like role of obscure figure unexpectedly thrust into the limelight, rather than the role of a jurist trying to tamp down a problem for the sake of procedural integrity, McBurney for some reason gave an interview to ABC News yesterday. In it, he effectively encouraged other grand jurors to speak out by minimizing the obligation of secrecy. That duty, he rationalized, is confined to the panel’s “deliberations,” a word he stripped down to the point of meaninglessness.
McBurney said that, in a “farewell session,” he had “reminded [the grand jurors] of their oath, which is a statutory obligation that they not discuss with anyone outside their group their deliberations — that’s the one word that’s in the oath” (emphasis added). He then drew a tendentious distinction between “deliberations” and “witness testimony”:
I explained you don’t talk about what the group discussed about the witnesses’ testimony, but you can talk about witness testimony. You could talk about things that the assistant district attorneys told you. . . . And then finally, you can talk about the final report because that is the product of your deliberations, but it’s not your deliberations.
This is ridiculous. It essentially rescinds McBurney’s own recent order, in which he carefully redacted the special grand jury’s final report to avoid making witness testimony public because, as he correctly reasoned, doing so would violate the due-process rights of persons who have not been charged with a crime — at least not yet. (To repeat a point we’ve previously covered, the special grand jury is authorized by state law to recommend charges but not to vote for indictments.) In addition, a grand jury cannot deliberate over a witness’s testimony without discussing the witness’s testimony. So McBurney duly got caught in his own tautology, conceding to ABC that grand jurors’ public statements could become “problematic” if they were to stray into the area of “synthesiz[ing] the testimony” — which, of course, is exactly what deliberating over a witness testimony is about.
More to the point, as ABC points out, in her media blitz, Kohrs did provide details on testimony given by Trump’s former chief of staff, Mark Meadows; by the South Carolina senator and Trump confidant Lindsey Graham, who’d sought to avoid testifying about his injudicious post-election communications with Georgia secretary of state Brad Raffensperger; and by other Trump associates. Furthermore, McBurney’s meanderings fly in the face of the admonitions the state provides in its handbook for grand jurors:
Secrecy of Grand Jury Proceedings
The oath you take as a Grand Juror that you “shall keep the deliberations of the grand jury secret unless called upon to give evidence thereof in some court of law of this state.” [Bold print in original.]
There are important reasons behind this requirement as secrecy protects witnesses from intimidation or tampering, and makes it more difficult for a witness to avoid subpoena, hide or destroy evidence or for a defendant to evade arrest. Secrecy not only aids in the investigation, but is of particular importance to an accused who is later cleared by a “No Bill.”
To insure secrecy, the law limits those who may be present in the Grand Jury room to the Grand Jurors, the District Attorney and his or her assistants, a stenographer or interpreter when authorized, and generally, only the witness who is testifying. While the Grand Jurors are deliberating and voting on a case, absolutely no one except the Grand Jurors may be present.
By law in Georgia, communications among Grand Jurors are excluded from evidence as a matter of public policy. However, you may disclose anything which occurred during your Term if ordered to do so by a judge of a court of record in this State.
Obviously, these instructions note that extraordinary measures are taken to “insure secrecy” when it comes to witness testimony itself — not just grand-jury deliberations about witness testimony. Those precautions are equally relevant now, even though the special grand jury’s work is done, because the district attorney is still considering whether to seek indictments from other grand juries — i.e., the witnesses are still subject to the same dangers of intimidation and tampering, and the same temptation to hide, flee, or conceal evidence. Also, if it were proper for grand jurors to speak to the media about witness testimony and other matters occurring in the proceedings, why would state law take pains to exclude the media from the testimony? Why would it exclude communications among grand jurors from evidence, and require a court order before grand jurors may be compelled to disclose such information?
Equally as foolish as Judge McBurney’s implicit green-lighting of grand-juror press tours is his decision to become public advocate for the prospective prosecution of Trump and other subjects of the investigation.
Naturally, defense lawyers for Trump and other subjects of the probe are claiming that Kohrs’s media appearances so damage their due-process rights that any eventual charges must be dismissed. As observed in my above-linked column, if there is an indictment, and a motion to dismiss on those grounds is brought, it will fail. The forewoman’s conduct is wildly inappropriate, but it hardly means that probable cause to indict is lacking, and the existence of probable cause is the main thing a grand jury exists to ensure. Grand-jury irregularities more serious than public commentary are not that uncommon, and they do not — the vast majority of the time — result in an indictment’s being tossed out. As a matter of jury argument, Kohrs’s performance may help Trump’s defense try to show that any case against him is the product of a rigged Mickey Mouse show; as a matter of law, though, it is not going to get the case dismissed.
The thing is, it’s fine for me as an analyst to opine in this way. It is not fine for the judge supervising the grand jury to do so. The grand jury exists to protect suspects from official violations of the lawful criminal process. By extension, the judge’s job is to maintain impartiality — both the appearance and reality of it — while upholding the process. Instead, McBurney is giving press interviews (which good judges resist doing) in which he effectively says that Kohrs’s commentary is no big deal. Perhaps worse, he is providing what amounts to an advisory opinion that any motions objecting to future charges would be meritless:
This grand jury’s sole role was to prepare a report that was merely a set of recommendations for the district attorney — full stop. Nothing more. And so folks should think long and hard about what impact, at all, this special purpose grand jury’s work would have should there be an indictment down the road.
It is not McBurney’s job, when no cases have been brought (much less assigned to him), to assess motions that haven’t been made, alleging harm that hasn’t been described, based on facts that haven’t been pled and that he can’t possibly know at this point. His job is to discourage violations of grand-jury secrecy by fortifying — not eroding — the secrecy rules.
Judge McBurney’s star turn won’t get as much attention as that of forewoman Kohrs. But in its own way, it is just as disturbing. If I were Jack Smith, the special counsel running the federal investigations of Trump, including any arising out of the 2020 election, my inclination would be to try to persuade Georgia prosecutors to stay their hand until I decide whether to bring a federal indictment.
The Fulton County proceedings may or may not prove to be the “Kangaroo Court” that former president Trump and his allies have claimed it is, but the Georgia goings-on are significant to the federal theory that Smith is weighing. That is, the feds are contemplating charges that Trump and others conspired to obstruct Congress and to defraud the United States by deceptively attempting to discredit the certified electoral votes of Georgia and other key states in which Biden won the popular vote — including by pressuring state election officials such as Raffensperger and scheming to stand up alternative slates of Trump electors. If Georgia prosecutors were to go first, and their case blew up because it had been poorly conceived and executed, that would redound to the special counsel’s detriment in various ways.
To avoid that outcome, Smith would be wise to seize the initiative and go first — or to decide that he is not going to bring a 2020-election case against Trump at all.