Georgia Judge to Release Portions of Grand-Jury Report on Trump Efforts to Overturn 2020 Election

A state judge in Georgia has ruled that portions of the grand-jury report of its investigation of Trump campaign efforts to overturn the 2020 election will be publicly released later this week. In particular, the New York Times reported this morning, the court plans to disclose the reports details of the grand jury’s concerns that a number of witness may have given perjured testimony.

The investigation has been underway for two years, led by the office of Fulton County attorney Fani T. Willis, an Atlanta Democrat. Willis has intimated that she could bring racketeering or other conspiracy charges against former president Donald Trump, some of his campaign advisers, and some who worked with the campaign — including those who agreed to serve as electors to cast the state’s 16 Electoral College votes for Trump. President Joe Biden won the popular vote in Georgia by slightly under 12,000 votes — i.e., by less than a quarter percent of the approximately 5 million votes cast.

Prosecutors from Willis’s office have been working with a special grand jury. Under Georgia law, that grand jury is authorized to investigate, file a report, and recommend charges, but not bring charges. If there are to be indictments, Willis will have to seek them from one or more separate grand juries, based on the work of the special grand jury.

As we’ve related over the last year, the special grand jury heard testimony from notable Trump allies, including Rudy Giuliani, who is apparently a target of the probe, and Senator Lindsey Graham (R., S.C.), who was advised that he was regarded as a mere witness, not a subject or target of the probe. In law-enforcement parlance, a target is a person prosecutors see as likely to be charged; a subject is a person whose conduct is being evaluated by the grand jury and may or may not be charged.

The Times reports that, in all, about 20 people have been advised that they are targets. Willis’s office has been accused of engaging in deceptive conduct with the so-called fake electors: advising them that they were merely seen as witnesses in order to induce their cooperation, and then telling them they were targets. The electors argue that they were not involved in any criminal conspiracy, and are better understood as contingent electors, not fake ones — i.e., they agreed to serve as electors if Trump’s campaign was able to overturn the popular election by lawful means, whether through the state courts or legislature. The electors were not certified by the state and did not attempt to convince Congress that they were a viable alternative slate of electors. On December 14, 2021, when the Electoral College met, Georgia’s votes were cast by the Biden electors — the only ones certified by the Republican-controlled state government.

Because grand-jury proceedings are generally secret by law, the special grand jury’s report has been on a close hold. There is said to be only a single printed copy, which is being held by Willis’s office. Various media organizations have argued for it to be publicly released in full. Judge McBurney’s eight-page order holds that most of the report should continue to be concealed until Willis completes her investigation.

McBurney elaborates that the special grand jury “provided the District Attorney with exactly what she requested: a roster of who should (or should not) be indicted, and for what, in relation to the conduct (and aftermath) of the 2020 general election in Georgia.” Because the special grand jury recommended that its report be published, Georgia law calls for it to be published.

Nevertheless, McBurney reasons that disclosure must be delayed based on due process considerations. A grand jury probe is a one-sided inquest in which many of those implicated have had no opportunity to be heard, much less to present exculpatory and other contextual evidence. Consequently, McBurney has declined to release the report until Willis decides whether to bring charges (at which point, anyone charged will be armed with due-process rights to fight the case; and anyone named in the report but not charged by the prosecutor will at least be able to point to the state’s non-prosecution decision).

The judge made three exceptions, as to which he found that the public interest in disclosure outweighed any “inconvenience” to the “pacing” of the grand jury investigation. The three are the special grand-jury report’s introduction and conclusion, as well as its “Section VIII, in which the special purpose grand jury discusses its concern that some witnesses may have lied under oath during their testimony to the grand jury.” Evidently, these three sections do not identify implicated people by name, a fact that, in the judge’s view, alleviates the due-process concerns.

The court ruled that the publication of these final report sections will occur this Thursday, February 16. That, McBurney wrote, will give the district attorney time to present the court with any contentions that portions of those three sections should continue being withheld.