Judge Gives Fulton County Prosecutor a Month to Answer Trump’s Motion to Quash Grand Jury Report and Preclude Georgia Charges

Last month, when the grand-jury forewoman — from the Fulton County investigation of Donald Trump’s interference in Georgia’s 2020 presidential — did a media blitz, running roughshod over grand-jury secrecy rules, we anticipated that Trump’s lawyers would file legal claims seeking to preclude and/or dismiss any indictment against him. And so he has done so.

Last Monday, Trump’s legal team submitted a 51-page motion seeking to quash the special grand jury’s final report, which is the basis on which Fulton County district attorney Fani T. Willis contemplates seeking indictments before other grand juries. (Under Georgia law, a special grand jury of this kind is limited to conducting investigations and recommending for or against charges in a final report; it is then up to the DA to seek indictments from regular grand juries.) The Trump team alleges that the state laws authorizing the use of a special grand jury (“the Georgia statues” [sic]) are unconstitutionally vague; that Willis should be disqualified from the entire investigation (as opposed to her now limited disqualification from investigating one suspect – a state senator – because of an ethical breach); and that the public commentary of Emily Kohrs, the forewoman, is indicative of grand jury misconduct warranting dismissal of the report and any charges based on it.

Trump alleges that supervising judge Robert McBurney violated his due process rights by making prejudicial statements about witnesses who invoked the Fifth Amendment. This is a strange contention. As explained a few weeks back, I do not believe Judge McBurney handled the forewoman’s misconduct well. Nevertheless, if he had followed the letter of Georgia law, he would have allowed the grand jury’s final report to be released in its entirety. Instead, he redacted substantial portions of it precisely to protect Trump’s rights as a (so far) uncharged person who is presumed innocent.

In any event, McBurney has now responded to Trump’s claims by directing Willis to respond. Note, however, that the judge has given the DA until May 1 to do that. That is, in the month ahead, nothing prevents Willis from obtaining an indictment of Trump and other subjects of the investigation and then arguing that Trump’s motion is moot. That, I’d hasten to add, would not prevent Trump from rehashing these claims in a motion to dismiss such an indictment.

To repeat what I wrote when the forewoman went public:

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.

Bottom line: Trump’s motions are premature, but his lawyers are doing what is to be expected of competent counsel at this stage — putting down markers for what they will claim when and if charges are actually filed. In essence, the Trump team is trying to bolster the former president’s main defense, claiming that he is the victim of a multi-front witch hunt led by unethical, partisan, Democratic prosecutors, who are better seen as elected politicians doing politics than as law-enforcement officials doing law-enforcement.

Whether this defense is effective or not will probably hinge on the charges filed and supporting. On that score, Fulton County DA Fani Willis, like the Biden Justice Department’s special counsel Jack Smith, has a lot more to work with than Manhattan DA Alvin Bragg.