The final recommendations of a special grand jury investigating attempts to overturn Georgia’s 2020 presidential election will largely be kept under wraps, a judge has ruled. Fulton County Superior Court Judge Robert McBurney wrote in an eight-page order released Monday that there are due process concerns for people that the report names as likely violators of state laws, but he found that three sections that do not mention specifics can be released later this week, on Thursday.
Now, different states can have different processes so far as grand-jury investigations are concerned, but as a general rule, this is how the criminal process is supposed to work in the American system of justice. Grand juries have enormous power to operate in secrecy and conduct entirely one-sided fact-finding, without an adversarial process. We allow that because grand juries aren’t supposed to reach conclusions — they are simply designed to level accusations, which must then be proven at trial with all the protections of an adversarial system. An adversarial system works differently in politics than in criminal justice, but the same basic idea underlies both systems: The search for the truth requires hearing from both sides.
The difference between grand juries and political bodies such as legislative committees or blue-ribbon fact-finding commissions is why we should not use the grand-jury process to investigate things that are properly matters of political accountability as to which a public accounting is demanded. I made this point recently regarding the Manhattan district attorney’s investigation of Donald Trump, and it is also one that should be considered at the outset of an investigation. When Democrats claimed that Trump colluded with Russia to steal the 2016 election, I argued that the people’s interest in a full and public accounting of what happened in 2016 was necessary in order to assess responsibility, to dispel conspiracy theories, and to allow the design of solutions that would bolster public confidence in our elections. Instead, we got the exact opposite: a long-running criminal probe conducted outside the public view and outside the adversarial process, which inflamed division and paranoia. Responses to January 6 and theories of a stolen election in 2020 have too often gone down a similar path. So long as we keep using the wrong tools, we will continue to get the opposite results from the ones we need.