On the menu today: Meet the Georgia grand juror who’s doing a nearly unprecedented media tour and likely complicating, if not torpedoing, any efforts to indict former president Trump or any of his aides and associates.
The Grand Juror Who Wants to Be a Star
It is not all that difficult for a prosecutor to convince a grand jury to indict a suspected criminal. There is no defense attorney for the accused person present; there is no cross-examination of witnesses. The grand jury, made up of approximately 16 to 23 adults, only hears the prosecutor’s arguments, evidence, and testimony from witnesses chosen by the prosecution. After the presentation, the grand jury votes in secret, and it does not need to be unanimous; according to the U.S. Department of Justice, at least twelve jurors must concur to issue an indictment.
The grand jury votes in secret on whether it believes that enough evidence exists to charge the person with a crime, which is a slightly different and lower standard than whether the accused is guilty of the crime. Sol Wachtler, the former chief judge of New York’s Court of Appeals, famously said that, “District attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.’”
The famous saying, “You can get a grand jury to indict a ham sandwich,” is meant to emphasize that an indictment is not an indication of guilt, and that a skilled prosecutor can usually sway a grand jury to believe almost anything. This saying is so persistent and ubiquitous, you could be forgiven for initially believing that there is some sort of notorious ham-sandwich mafia that plagues innocent Americans.
In the aftermath of the 2020 election, former president Donald Trump made phone calls to Georgia state officials, including one particularly notorious call to Georgia’s secretary of state, Brad Raffensperger, berating him and declaring that Raffensperger needed to “find” enough votes to declare Trump the winner of the state.
Fulton County district attorney Fani T. Willis — a Democrat — subsequently began an investigation into whether Trump or anyone else broke Georgia laws during the post-election fight about the state’s results. In May 2022, Willis convened a grand jury which heard testimony from 75 witnesses behind closed doors up until this past January.
Last week, the public learned that a majority of the panel recommended that prosecutors should pursue perjury charges against at least one witness: “A majority of the grand jury believes that perjury may have been committed by one or more witnesses testifying before it. The grand jury recommends that the District Attorney seek appropriate indictments for such crimes where the evidence is compelling.”
President Trump did not testify before the grand jury, which means the investigation is not going to indict him. Trump characterized the decision as “total exoneration.”
Grand jurors are selected in a similar manner to jurors in criminal trials, except there is no juror challenge by either side — as mentioned earlier, there is no defense attorney present.
When jurors are selected at random from lists of English-speaking, adult U.S. citizens who reside in a particular county and haven’t served on a jury in the past year, there’s always the chance that the foreperson of the jury will turn out to be a 30-year-old woman who is between jobs, who has never voted, and who appears thrilled to be the center of attention.
This week, Americans are getting a good look at the usually secret world of a grand jury, as the foreperson of the grand jury investigating the election aftermath, Emily Kohrs, has chosen to go on a media tour, sitting down for interviews with the Associated Press, the New York Times, the Atlanta Journal Constitution, CNN, and NBC.
Grand jurors are instructed to not speak of their deliberations or unpublished portions of the panel’s final report. So far, Kohrs appears to have walked right up to the line.
She described the high-security environment to the AP: “They were led down a staircase into a garage beneath a downtown Atlanta courthouse, where officers with big guns were waiting. From there, they were ushered into vans with heavily tinted windows and driven to their cars under police escort.”
She told the Atlanta Journal Constitution, “We heard a lot of recordings of President Trump on the phone is amazing how many hours of footage you can find of that man on the phone. . . . Some of these that were privately recorded by people or recorded by a staffer.”
She told CNN, “We definitely heard a lot about former President Trump, and we definitely just discussed him a lot in the room. And I will say that when this list comes out, you wouldn’t — there no major plot twist waiting for you.”
She told NBC of the list of recommended indictments, “I will tell you, it’s not a short list. We saw 75 people. . . . There are certainly names that you would recognize. There are definitely some names you would expect.” When asked if the jury recommended more than a dozen indictments, she said yes.
She told the New York Times, “It was really cool. . . . I got 60 seconds of eye contact with everyone who came in the room. You can tell a lot about people in that 60 seconds.”
She also told the Times, “This is one of the coolest things that’s ever happened to me.” No doubt. She described herself as “insanely excited” about the opportunity to be foreperson of such an important grand jury, and indeed, both terms seem aptly applied.
In her television interviews, Kohrs is positively beaming. She knows some big secrets, and she knows she should not reveal them, but she can give little hints here and there.
Kohrs’s decision to do a slew of interviews won’t automatically taint the work of the grand jury. But if Willis does indict individuals based upon the grand jury’s work, defense attorneys will point to Kohrs’s descriptions as evidence of bias and improper procedures — and one can never be 100 percent certain how a judge will rule on those objections and motions.
On CNN, former U.S. attorney Elie Honig characterized Kohrs’s media tour as “a prosecutor’s nightmare”:
Mark my words, Donald Trump’s team is going to make a motion if there’s an indictment to dismiss that indictment based on grand jury impropriety. She’s not supposed to be talking about anything, really. But she’s really not supposed to be talking about the deliberations. She’s talking about what specific witnesses they saw, what the grand jury thought of them. She says some of them we found credible, some we found funny. I don’t know why that’s relevant, but she’s been saying we found this guy funny or interesting. I think she’s potentially crossing a line here. It’s gonna be a real problem for prosecutors.
MSNBC’s Barbara McQuade, a former prosecutor, fumed:
She said she swore in one witness while holding a Ninja Turtle ice pop she had received at the district attorney’s office ice cream party. A what?! Why on Earth would grand jurors be socializing with the prosecutors? A grand jury is an independent body, and prosecutors are trained to maintain a professional distance and avoid engaging in interactions that could be perceived as influencing their decisions.
Kohrs also revealed some other concerning facts. She reported that when witnesses invoked their Fifth Amendment right to refrain from answering questions on the basis that their answers might incriminate them, she could hear all of the other grand jurors writing furiously. This could indicate that jurors were improperly holding the assertion of a constitutional right against witnesses. She said another member of the grand jury brought a newspaper into the room every day and pointed out stories about their investigation, though she herself avoided news coverage to maintain an open mind.
“She shouldn’t be doing this,” concluded Dan Abrams, ABC News’ chief legal analyst. “It isn’t helpful to the perception of the objectivity of the criminal justice system, and it starts to feel like she’s putting pressure on the district attorney to actually move forward with charges.”
For what it’s worth, Trump attorney Alina Habba sees Kohrs’s media tour as a giant gift to her efforts to defend the former president. Appearing on Newsmax, Habba gloated:
Your intentions were made clear. Thank you for going on national television, for breaking any confidentiality or impartiality that you’re supposed to hold as a grand juror, let alone the forewoman of the grand jury. . . . This is not what you’re supposed to do. I don’t care if you’re a Republican, I don’t care if you’re a Democrat, you’re not supposed to go in, and come out of a grand jury, divulge secrets!
This is our fame-obsessed culture at work. Grand jurors aren’t supposed to be famous, even though what they do is enormously consequential and often a subject of great public interest. When you’re selected to serve on a jury or a grand jury on a huge criminal case, your first priority and obligation must be the law and justice. If, after the verdict is rendered, you want to do some interviews, let the public know how you interpreted the evidence and arguments of the case, that’s fine. But the point of the process is not to turn you into a star or a celebrity.
For years now, the great Yuval Levin has diagnosed and decried the trend of those entrusted with important responsibilities choosing to see those positions as vehicles for self-promotion:
It’s a pattern we can see across our society: People with roles to play inside institutions instead see those institutions as platforms for them to perform on, and the performance they offer up is generally a morality play about their own marginalization. As a result, too often no one claims ownership of the institutions of our society, and so no one accepts responsibility for them.
The quote attributed to Andy Warhol — or perhaps misattributed — “In the future, everyone will be world-famous for 15 minutes,” was not meant as a declaration of a new constitutional right.
ADDENDUM: Because it was an uncompetitive general-election race, last year’s contest for governor in Maryland didn’t get a lot of attention outside the state. Democrat Wes Moore, who really does have the kind of spectacular life story that impresses people, won easily. And now, a surprising number of Democrats argue that he should run for president someday, without bothering to see how Moore performs in, you know, government. Moore has been in elected office for 36 days now.