Will Donald Trump Luck Out Again?

O ne of the best things about criminal justice in the United States is that, in matters of great significance, we place our trust in the judgment of the community — juries of our peers. That includes grand jurors, whose constitutional function is to be the citizen’s protection against overbearing prosecutors, making sure there is sufficient evidence before someone is stigmatized by a formal criminal accusation.

Alas, for all our abstract adulation of “the community,” it is in reality a very human mixed bag. It inevitably includes the occasional limelight-seeker — plucked from obscurity, randomly assigned to The Big Case, and unable to contain herself. Emily Kohrs — the young woman who served as forewoman of the state grand jury in Fulton County, Ga., which just completed a final report of its probe of the Trump campaign’s efforts to disrupt the 2020 presidential election — is apparently one such publicity hound.

For all his woes, Donald Trump is a lucky guy. As an unpopular politician who couldn’t get above 46 percent of the popular vote in 2016, he landed the historically unpopular Hillary Clinton as his opponent and, by a miracle of Electoral College math, managed to win the presidency. More recently, when it looked like the prosecutorial walls were closing in on him after he handed his Democratic enemies the gift of a slam-dunk case by mishandling classified intelligence, it suddenly emerged that President Biden, whom the Justice Department wouldn’t dream of prosecuting, had also been mishandling classified intelligence — for decades.

And now, on the cusp of being indicted in Georgia, Trump has been gifted Emily Kohrs.

The forewoman has done a whirlwind tour of the Trump Derangement Circuit — CNN, MSNBC, the New York Times, etc. — effectively announcing that the special grand jury had recommended Trump and several of his associates and campaign allies be indicted for an array of crimes.

One assumes that Judge Robert McBurney is ballistic. As we’ve detailed (here and here), McBurney last week directed that major redactions be made before the special grand jury’s final report was publicly released. His reasoning: Grand-jury proceedings are secret precisely to protect the due-process rights of people who have not been formally charged with a crime; ergo, it would violate the Constitution to stigmatize such people by broadcasting that a grand jury suspects them of serious offenses when the prosecuting authority — Fulton County district attorney Fani T. Willis — has not yet decided whether to charge them.

Kohrs essentially flouted the judge’s order, while rationalizing that she was honoring it. She told the media that the grand jury had recommended charges be brought against many people. Although she did not mention their names, she asserted that they were figures “you would recognize.” She added that those who have followed the press coverage of the probe won’t be surprised by the coming indictments: “I don’t think that there are any giant plot twists coming,” she said. She wouldn’t come out and state outright that Trump was among those who will be charged, but she related that, “It was a process where we heard his name a lot. We definitely heard a lot about former President Trump, and we definitely discussed him a lot in the room” (i.e., the examination room in which grand jurors hear evidence and deliberate).

Just a reminder for some context: Under Georgia law, the special grand jury only makes recommendations about what charges should be brought against which people. It is now up to District Attorney Willis to decide whether to seek formal charges from regular grand juries, using the evidence uncovered by the special grand jury.

Kohrs’s media blitz is outrageous. In Georgia, grand jurors take an oath to “keep the deliberations of the grand jury secret unless called upon to give evidence thereof in some court of law of this state.” I believe this is the rule in all states, because it is foundational to criminal investigations; the obligation to maintain grand-jury secrecy is similarly reflected by Rule 6(e) of federal criminal procedure. Kohrs ran afoul of that obligation, and she cavalierly undermined Judge McBurney’s appropriately careful line-drawing between Georgia law’s grant of a public right to know the contents of a special-grand-jury report and the Constitution’s guarantees of due process.

In a bottom-line legal sense, though, Kohrs’s 15 minutes of fame will prove to be of negligible importance. Sure, defense lawyers for Trump and others will cite Kohrs’s commentary in motions to throw out any indictment if they are charged. Those motions, however, are not going to be granted. It is an oft-cited criminal-law maxim that defendants are entitled to fair proceedings, not perfect ones. There is no apodictic fairness on this side of the grave. Cases don’t get tossed unless the cited misconduct makes a difference — and grand-jury irregularities almost never do.

Defense claims of grand-jury misconduct generally do not get decided until after the trial has taken place. That’s why they virtually never amount to anything. If the trial jury finds that there was enough evidence to find a defendant guilty beyond a reasonable doubt, the courts will conclude, a fortiori, that there must have been more than enough evidence merely to charge the defendant (under the less-weighty probable-cause standard). Therefore, any irregularities in the grand jury are deemed harmless error. On the other hand, if the trial jury acquits the defendant, that is the end of the case and there is no reason to revisit what happened way back in the grand-jury phase.

Where Kohrs helps Trump is in his already massing defense that the Georgia case is a partisan witch-hunt — a “Kangaroo Court,” as he has put it. Willis, whose office is an elected position, is a partisan Democrat who began attacking Trump publicly before the investigation even started and let it be known that she was considering racketeering charges (the kind brought against mob bosses and criminal syndicates). Her office has been credibly accused of misrepresenting the status of people implicated in the investigation — informing them that they were only seen as witnesses to get them to cooperate, and then suddenly labeling them targets of the probe. Willis has also been disqualified by Judge McBurney from investigating one suspect in the case due to an ethical lapse: Even as she led the grand jury in scrutinizing state senator Burt Jones, who volunteered to serve as a Trump elector if Biden’s victory was overturned, Willis sponsored a fundraiser for the Democrat vying to defeat Jones in the next election.

In conjunction with all of that, the mockery Kohrs has made of grand-jury rules (which is the subject of Jim Geraghty’s excellent Morning Jolt today) helps Trump frame the Georgia case as a political farce, in which Democrats are again kicking the rule of law to the curb to nail him. And let’s be blunt: It’s not just that Kohrs broke the rules, it’s that she comes off as a starstruck goofball who, as she recalled between giggles, “kind of wanted to subpoena” Trump because, as forewoman, she got to administer the oath to witnesses and “thought it’d be really cool to get 60 seconds with President Trump, or me looking at him and being, like, ‘Do you solemnly swear. . .’”

In the four-corners of a criminal case, this won’t matter. The only thing that will count is whether Willis can present compelling evidence that proves Trump’s guilt. If so, Kohrs will be a distant memory, as will Willis’s own partisan grandstanding.

On the other hand, in the court of public opinion, where the 2024 presidential election will play out, it may be a boost to Trump’s quest for the GOP nomination if (a) any formal charges against him are not shocking (and let’s remember, the Georgia allegations are already well-known), and (b) it looks like Democrats are breaking rules and exploiting the criminal process as a political weapon.

To repeat what I’ve argued before, Trump can’t win a national election given his unpopularity with the general electorate, which — as the 2022 midterms show — seems to harden the more his base of devoted supporters clings to him. Republicans need to focus the campaign on Biden, and if they nominate Trump, they will be signing up for endless news cycles about developments in the myriad Trump investigations. And for what? To campaign for a deeply flawed 78-year-old man who can’t win and, even if he could, would be a lame duck the moment he did?

Even assuming I’m right, though, political campaigns are more unpredictable than criminal trials. If Emily Kohrs and Fani Willis help Trump convince Republican primary voters that the Democrats’ quest to indict him here, there, and everywhere is a politicized abuse of power, his bid for the GOP nomination could get a big boost.

And the only politician in America happier about that than Donald Trump would be Joe Biden.