Fulton County District Attorney Fani Willis on Tuesday tried to convince a judge not to publish a report by a special grand jury that was convened eight months ago to investigate allegations that former President Donald Trump meddled in the 2020 presidential election in Georgia.
Completed this month, the report is considered critical to understanding Trump’s state of mind regarding his request to state elections chief Brad Raffensperger to “find” the votes Trump needed to win the battleground state.
Members of the press—and the special grand jury itself—have lobbied for its release, with the former describing the report’s contents as “matter of profound public interest that goes to the heart of the nation’s democratic forms of government” in a 109-page brief prior to Tuesday’s hearing in Atlanta.
But the report—compiled using testimony from 75 sources—also has an inherent political risk: Based on the special grand jury’s recommendation, Willis would potentially have an impartially decided recommendation from two-dozen randomly selected members of the public whether she should or should not pursue charges against Trump or his associates. It’s a concern she expressed in court Tuesday afternoon.
“Decisions are imminent,” Willis said during the day’s proceedings, arguing that the special grand jury’s recommendations should be considered an internal document for the prosecution, and part of an ongoing criminal investigation. “We want to make sure everyone is treated fairly.”
The judge Tuesday ultimately decided to delay a decision, saying there would be “no rash decisions” to release the report. However, experts told Newsweek that either decision could have serious implications on the shape of any potential trial against the former president.
In most cases, grand jury proceedings are conducted in secret, with members given the leeway to tug every string and allegation in a case—no matter how credible it might seem—to determine whether prosecutors have grounds to bring a case.
To some degree, the process of convening a grand jury can be seen as a check on the prosecutor’s office that helps lend credibility to a case, particularly one as politically charged as a case against a highly polarizing former president.
The group could find that no wrongdoing occurred, prompting a prosecutor to potentially dismiss a case. Jurors could also potentially conclude that there was wrongdoing—perhaps criminal and non-criminal—that should be brought to light, but outline a case in which a prosecutor decides that criminal charges are not appropriate.
“On any grand jury, some members will likely be Democrats and some will be Republicans, and they have to work and deliberate together,” Kevin Washburn, dean of the University of Iowa School of Law and a former assistant secretary of Indian affairs at the U.S. Department of the Interior under President Barack Obama, told Newsweek.
“In a case like this, some members of the grand jury may well be skeptical and push the prosecutors,” he added. “I suspect that some members of a grand jury will watch closely for any unfairness or bias by the prosecutor and will be inclined to want to understand all the nuances of the crime and make sure that there is evidence to support each of the elements of the offense.”
In that process, however, grand juries are free to consider a wide range of evidence including hearsay, rumors, illegally obtained evidence and other elements that would not be admissible in a criminal case. Publishing those findings in a report, some argue, could serve to prejudice an eventual trial jury.
Or it could galvanize it. Since its conception, the institution of a grand jury has been seen largely as a pawn of the prosecution, a mechanism intended to provide a veneer of impartiality to an investigative process that is more or less guided by the prosecutors.
Though the only issue jurors are tasked with is deciding whether a prosecutor’s evidence is legally sufficient to justify an indictment, many argue that the jurors are often not qualified to answer that question, and largely need a hand from the prosecutor’s office to make that happen.
“I can’t say 100 percent of the time,” Jeffrey Weiner, a Miami-based attorney and a former president of the National Association of Criminal Defense Lawyers, told Newsweek. “But I’d say about 98 percent of the time, they are simply rubber stamps for the prosecution and offer no protection for the citizen.”
One example of a highly politicized grand jury investigation came in 2020, when a grand jury famously decided not to indict all but one of the white police officers involved in a raid that resulted in the death of Breonna Taylor, a Black woman, in her home while she was sleeping.
Many at the time raised questions about the leeway allowed to the grand jury in deciding whether charges should be brought against the officers involved or whether prosecutors had unilaterally decided that the involved officers acted in self-defense without submitting the issue to the grand jury for review.
The truth never came out. After a judge ordered the release of transcripts outlining deliberations, the state attorney general’s office claimed that the grand jury’s debate over whether to bring charges and the prosecutor’s recommendations were never recorded. Ultimately, the officers involved did not face federal charges until two years later, and only after the intervention of Democratic Attorney General Merrick Garland.
While releasing the facts of a case as compiled by a random group of citizens could be seen as lending an air of credibility to the investigation, some—even with all the evidence in the world proving the case—could also see the report as having an inherent motive, particularly when brought by a Democratic district attorney.
At the end of the day, the average citizen is likely poorly equipped to second-guess a law-trained prosecutor about whether the government has adequate evidence to send a case to trial. And if the target of the investigation never got the opportunity to present a defense in the drafting of that report, it is likely to raise questions whether the findings in that report should be considered the last word on what took place.
“Would the grand jury report help the credibility of the government’s allegations? Probably,” University of Illinois law professor Andrew Leipold, who once wrote an extensive critique of the grand jury process for the Cornell Law Review, told Newsweek.
“If the prosecutor has to convince the grand jury to sign off on a report that alleges certain wrongdoings, we can be modestly confident that the jurors’ oversight made the report more careful and precise. Still, the notion that the grand jury is an entirely independent entity that operates outside of the prosecutor’s/government’s control is very likely wrong.”