Lawfare Archive: A Very Special Grand Jury Report

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With an episode from the Lawfare archive for May 16th, 2006.

On May 11th, Anna Bauer and Lawfare published over 60 transcripts and recordings that were heard by the Fulton County Special Grand Jury throughout its investigation into election interference in Georgia during the 2020 presidential election. Many of these transcripts and recordings have not been available to the public. Until now.

For today's archive, I chose an episode from January 10th, 2020. In which Benjamin Wittis sat down with Anna Bauer, Anthony Michael Kreiss, and Tomar Hallerman to discuss what could happen. After the Fulton County's Special Purpose Grand jury completes its investigation and report. I'm Benjamin Wittis, and this is the Lawfare podcast.

District Attorney of Fulton County, Fani Willis, has completed her special grand jury investigation of election tampering in 2020. The Special Purpose Grand jury has completed its report. It has been dissolved and the supervising judge yesterday scheduled a hearing for January 24th to decide whether to make the report public.

What's going to happen next? Are there going to be indictments?

“Are they going to wait until after the report comes out?”

Or should we expect them imminently? We gathered in the virtual jungle studio, an all-star team to discuss the matter. Lawfare Contributor Anna Bauer, Georgia State University Law Professor Anthony Michael Kreiss, and Tomar Hallerman of the Atlanta Journal Constitution, co-host of the terrific podcast breakdown, which has followed the Special Grand jury from the beginning.

We went over it all, what to expect now that the report is done, will it become public or is that really in question, and what should we expect is a Trump indictment coming next. It's the Lawfare podcast January 10th, a very special grand jury report. All right, Tomar, get us started here, what is the news that we learned this morning and

what do we know at this stage? Sure, we got a two-page order from Judge Robert McBernie this morning, and he is the Fulton Superior Court judge who's been tasked with overseeing this special grand jury over the past eight months. Now he's been getting periodic reports from jurors as they've notified him on his on

their progress in this investigation, and in this order today, he acknowledged not only that the grand jury finished its work, it's written up a final report, and that he and the majority of his colleagues on the Fulton bench agreed that the Special Grand jury did its work. It fulfilled its obligation under its authorization, and that it is hereby dissolved.

What else we saw in today's order was setting up a hearing on January 24th in which parties

of this report should be made public.

So we should expect to hear the DA's office argue their side, members of the media perhaps working in one giant coalition will of course argue that this report should be made public, and we could potentially hear from potential targets of this investigation, folks who could see charges at the end of the day potentially come forward and try and stop delay this report from being published or even to get their portions of the report scrubbed or redacted.

All right, so you've put a lot out there for those who do not have a background on this aspect of Georgia State Criminal Procedure, and can you give us just a brief overview of what a special

“purpose grand jury is and how it interacts with the regular Georgia Criminal process?”

Yeah, sure, Ben.

Special purpose grand jury is an investigatory body.

It's made up of, in this case, I believe that there were 23 jurors who were selected and a few alternatives as well, and unlike a regular grand jury, the special purpose grand jury cannot issue indictments, but it can recommend indictments. It's also not limited by the normal timeframe that a regular grand jury is, which is about two months.

In this case, the grand jury, the special purpose grand jury, excuse me, has been sitting since May, so it hasn't been limited by that two month term of court that a regular

“grand jury usually is, and it also is usually focusing on a specific topic, so that kind”

of allows the grand jurors to develop some expertise and really get into the details of the case in more depth than a regular grand jury usually would, which is dealing with a lot of different cases. All right, so I want to throw this question out to Anthony, but please, Anna and Timar, way in as you have thoughts on it, we have a report and a hearing a couple weeks from now

as to whether to make that public, there are presumably recommendations for prosecution or non-pracicution or both in that report, and a subsequent grand jury, a regular grand jury, has to act on those before they become operative, so should we assume Anthony that district attorney, Fani Willis, is going to wait before doing anything until that hearing and the material becomes public, if it does or as Tomar describes, there's a lot of fights

over the substance of that report and what parts of it get publicized, or should we assume that indictments could come any day, because Fani Willis does not have to wait for the decision about the opening for the public of that grand jury report before she proceeds to do whatever prosecutions she might want to do.

Well, that's the $100 million question of the day.

What we don't know is whether or not this 24th hearing is really going to weigh one way or

“the other in terms of her strategy, I think it's very much in the cards that she could”

be pursuing something with the regular grand jury as we speak in anticipation of that report coming out. I think the other thing that has weighed on my mind and some other folks as well is how detailed is the grand special purpose grand jury's report, because it very well may be the case that the report was kind of crafted with the anticipation that it would be made

public or most of it would be made public, in which case perhaps the DAs in terms is a little less against releasing it publicly, so I think there are a lot of variables here. I also think that there's nothing routine about this investigation and this process, and so it's really anybody's guess what will happen or how quickly or how slowly things will take. But I do think that given the way Georgia's law, our code is written, the Judge McBernie

really doesn't have a lot of discretion, I don't think, in terms of not releasing the report, because Georgia law says that, in a regular grand jury, if they have a general presentment that a majority of the grand jury wants to make public, that the judge presiding over that

So there does seem to be some, at least to me, my initial reading of the statute and some

“of the other case law, I'm not sure that Judge McBernie is going to feel as if he doesn't”

have the discretion or that he has the discretion to not release this information. So that might also be putting a little bit more pressure on Bonnie Willis to do something before this comes out, but it's anybody's guess how to actually play out at the end of the day. Anna, Tomar, do you have thoughts on this?

It's worth noting that in this two-page order we saw today from Judge McBernie, he said that a majority of the grandiors had voted that they wanted this report to be made public, and he did indicate just as Professor Christ said that he probably does have an obligation to honor them.

At the same time, he also raised the question of whether this final report qualifies as

a special presentment under the law. And perhaps that is a loophole that could be argued in court. So I'll be very interested to see how the DA's office takes this. As I game this out in my mind, kind of what possible position the DA may want to take on this, you know, on the one hand, a lot of the information that's been investigated has

been made public one way or another through the Rathensberger tape through the January 6th committee. So I truly wonder how much new stuff is in there. And perhaps she should know at this point what is in that report, what recommendations are being made.

If she agrees with them, maybe she doesn't want this out there public.

So she can say, you know, I'm just following the advice of the good people of Fulton County after they spent eight months looking into this. On the other hand, I could see why the DA might want to keep this report under RAPS at least for a couple more months, say that the grandiors do recommend inditing different people.

The DA might want to buy herself some time to dot her eyes, cross her teeth, get everything ready for a potential prosecution without having the public and the media's glaring spotlight on her. Anna, do you float? Yeah.

I think that's right, tomorrow. I also picked up on judgment in judgment Bernie's order, the fact that he mentioned not only whether this is a special present meant that the grand jury wants to issue and make public, but just whether it is a presentment at all. And I find that very interesting, under Georgia law, it could be either considered a

special presentment, which is typically considered, you know, statutorily a charging instrument, but it also could be considered a general presentment, which kind of at common law is like this more general report that a grand jury might issue to kind of summarize its duties that it undertook during its term and recommendations for future grandjuries. I know that there's a lot of different ways that you could kind of think about whether it's

a special presentment or a general presentment, but it was just interesting to see that

“McGearny is kind of questioning whether this is a presentment at all, because I think it's”

very clear that it is a presentment and some of the case law that he cited, which I certainly want to take a closer look at, but a lot of it has to do with arguments in the grand jury context that a presentment should be redacted or expunged, and particularly some of them, some of these cases involve criticism that the grand jury's report makes about misconduct in public office or kind of non-criminal wrongdoing.

So I think that that's interesting, and I wonder what's going on there, I'm not exactly sure, but we'll see. All right, so I want to bore in on this point a little bit, because, and I you seem confident that this is a presentment, the judge is not, we haven't seen the text of anything. So Anthony, can you walk us through what the issue is here that he's struggling with?

That is, what would be the circumstances in which somebody would have a right to have some of this stuff suppressed, and what would be the circumstances in which you simply dump the document and the public domain?

“Yeah, so I think from the onset, it's very important to know something about Judge McBurney,”

for those of us who have followed his cases, both this case, but also some of the other high-profile criminal trials that he's run, and he also oversaw the constitutional challenge

Judge McBurney doesn't leave anything on the table, he is incredibly thorough.

He asks questions that aren't even raised necessarily by the parties, he certainly doesn't

“leave any stone unturned, and I think that's what we're seeing here.”

I don't know if I would necessarily read it beyond anything beyond that, but at bottom, really the issue here, is if it is a presentment, then again, he has a potentially mandatory obligation to follow the majority will of the grand jury and release the report. I think, of course, these other bigger questions about whether or not we want these reports to be out in the public eye if there is no follow-up and do process and people just have

these allegations that are left out there hanging over them, and they aren't afforded

the ability of a full-bone trial to prove their or show evidence contrary to what the special purpose grand jury on earth, and so I certainly think people do have some interest there, but as Tomar said, so much of this information is already in the public eye, it's already well known, and so I'm not entirely certain how much any individual would get out of that. We also have these target letters that were sent earlier in 2022 to suggest or for that

the full-encounting district attorney was suggesting that a number of high profile individuals were likely targets of prosecution in this investigation, and so that's already overhanging them as well, so there's certainly a balance of harms that need to be considered, I think, by Judge McBernie about any potential reputational interest that are at stake here, but

I think ultimately the whole purpose of a special purpose grand jury is to get at the

heart of a matter that is deeply complex, that have major importance and great significance

“to the public, to the integrity of public office, that's why we use these for corruption”

cases and public corruption cases so often, and so I think there is a big interest that the public has in understanding what the special purpose grand jury eventually found, so I'm on the side of more transparency is better, I think that there are what we'll see what they found, my inclination is that Judge McBernie will probably release most of this to the public, but again, I think this case is kind of suy generous to all their cases that we follow

often in Georgia or just anywhere, and it's really going to be hard to tell what exactly he's going to happen here, because the interest are so salient and so important, and again, I think this case is just so very unique to what we normally see, so it's anybody's guess what will happen at the end of the day. All right, so you all are being exceptionally responsible, which I feel an obligation to try

to do something about. Tomorrow, I want to start with you, you said that a lot of the evidence has already come out, and I am actually skeptical of that, because among other reasons, because of your excellent podcast, which has convinced me over, it's got to be 15 episodes or so, that there's a huge amount we don't know, and a lot of witnesses have gone in there, and you and your co-host have kind of scratched their heads about what they were asked about,

what the universe of material that they would have knowledge about, and it seems to me if you're if you're contemplating as Fanny Willis, some kind of grand Riko, Georgia, Riko, statue, indictment involving potentially a lot of people, the details of the stuff we don't know

“is at least as important as the stuff that we do know. So tell me why I'm wrong and why why there's”

not that much more to learn here as a factual matter. Oh, Ben, I totally agree with you, and especially if she goes for a more sweeping Riko indictment, you're absolutely right, the details matter so much here. And really, there's this strategy question for the DA, should she decide that she want to move forward with charges? She's of course hinted heavily that she's looking at Riko as a part of this, and she could very well do that, and it kind of goes to show the breadth of people

who she's brought in from low-level employees at the Secretary of State's office all the way up to a sitting U.S. Senator and the former Chief of Staff at the White House. She could also choose

She has the Raffinsberger tape, that phone call from January 2nd, 2021 when President Trump urged the Secretary of State to find him 11,780 votes. Some folks think that alone is grounds for a slam dunk, you know, election fraud charged against the former president and just kind of go for that.

“Go after the fake electors on something like forgery. And so I think there's a question of what”

the DA wants to do there. Many of the folks she've talked to have spoken to the January 6 committee. I mean, Brad Raffinsberger, BJ Pack, the former U.S. attorney in Atlanta, Ruby Freeman, the Fulton County election worker. That said, she was able to talk to folks who did not go before the January 6 committee, most notably Mark Meadows and Lindsey Graham. And there's also folks the January 6 committee talked to who she wasn't able to get a hold of. Most notably David

Chafer, the chairman of the Republican Party at Georgia who as court filings have shown us has become very much a person of interest in this investigation. So I think there's plenty we can learn here, but in terms of maybe the broader contours, the January 6 committee, especially, really helped bring a lot of that to light and really helped the DA. I've spoken with Professor Christ about this, but the January 6 committee was able to shake loose some really important

emails from Johnny Smith about what Trump's campaign team knew and when, as they signed documents under oath in Georgia lawsuits, things that could really help establish criminal intent for folks

“like President Trump here in Georgia. So I think they've been kind of operating on parallel”

tracks and they kind of help one another, but you're absolutely right, Ben. There's stuff in here

that we're going to learn about for the very first time. So Anne, if this were in the federal system,

first of all, it wouldn't have, the in the whole investigation would have preceded very differently. But we wouldn't be expecting a single report with a big bang, right? A kind of, please indict the following people, Mr. Attorney General, wouldn't happen. We would expect, you know, the lower grade people to be indicted first, maybe pressure put on them to flip on people above them and you kind of work your way up the chain. In this case, we seem to be expecting all of the

answers in a kind of singular report. And I'm wondering, do you think we should be maybe considering that that's not what's going to happen? Maybe what's going to happen is, you know, hey, as a preliminary matter, you know, Madam District Attorney, the following people clearly violated the following statute, maybe start with them, is there is there any chance in your mind that the report will actually reflect sort of prosecutorial priorities to not try to answer

the top questions at first, but rather focus on a bunch of fake electors, a bunch, you know,

Rudy Giuliani, who's gotten a target letter, and that maybe we should be thinking hard about who has and who has not received a target letter. Yeah, it's a good question, Ben. My view is that we are going to see the big questions answered. If we ever see this report in the coming months or even in the coming years, I certainly think that some of this litigation around whether or not the report will be published and and to what extent it will become public.

“Could go on for quite a while and and I think that there's a good chance that we see some”

indictments before its publication. But whether or not that is the case, I think it's been clear that the District Attorney has been very focused on the conduct of Donald Trump. There is the Raffin's burger call. There is a lot of information that has already been made public that I think at least in my view is at least are you bold that there's plenty of evidence there to seek indictments at this stage. However, you're right that often there is this kind of

strategy to target the low-hanging fruit first and see if anyone will flip.

There's been some reporting around that and about how the District Attorney has not had a whole lot of success in potentially negotiating some clear deals with some of the fake electors that's been hinted at in some of the filings and in a battle with the attorneys who represent 11 of the so-called fake electors. Maybe this is something that tomorrow and Anthony

the larger targets of the investigation actually intended or at least recommended for indictment

in the report. What do you think, Anthony? Do you think there's a chance that we've all breathed too much into this report and that the coercive steps of the investigation may

“need still to take place before we get any kind of final Georgia resolution of this stuff?”

Yeah, I think that's a very hard question to to answer. Partially, I'm not certain and I don't think anybody is, you know, how much parallel activity the DA's office has has undertaken while the grand jury has wrapped up their work. If I recall correctly, Fanny Willis had said probably

at some point in late November or early December last year that this special purpose grand jury

was wrapping up their work fairly rapidly at that point. So they've had a, you know, they've had a good month and a half or so to maybe shake some things out of the bushes, you know, while this special purpose grand jury crossed their teas and got out of their eyes. So that's also possible. I do agree, though, it's not clear to me that the report is going to be the end of this kind of end all be all smash hit, you know, that everybody's going to be reading. It may very well be a

bare bones report that that gives a pretty thin overview, not, you know, not insignificant or unimportant, but perhaps just kind of a thin overview of what the special purpose grand jury found.

“So I, I think the real least for me, the big question is what kind of prosecutorial strategy”

if any is Fanny Willis going to pursue as tomorrow, you know, suggested earlier, this office and Fanny Willis in particular is a big fan of Rico and New Georgia Rico laws. And I was very skeptical and I, I, I, I, and one of those people who, you know, every time you hear Rico get thrown out there,

I just cringe because it's almost never correct. And I'm not a criminal all person either, but I

know that it's, you know, it's a lot of, you know, people just think of Rico as being this kind of sexy thing that everybody wants to, to, to talk about and, and grab a hold of. But this office really does like that. And I, I do think there are some strategy perhaps that might be different. If that is the road, this office is going to go down rather than pick off a handful of statutory violations he were there or bring just a kind of traditional conspiracy charge for conspiracy

to commit or conspiracy to solicit election fraud. So I, I think that there's a lot of moving

“variables here. There's a lot of factors that we just don't know. But that's why I think that this”

January 24th hearing is going to be so telling because you, you will probably get a better idea of the flavor of what is coming down the road from the DA's office based on the kinds of arguments they put forward to judge with Bernie about what they want to do with this report or how much information there is even there. That might be sensitive and require some form of, of redacting or some kind of, you know, equitable order from the judge. So that's really what I'm looking for is

is what the tenor of the conversation is on that hearing because I think a lot of these questions that are percolating now, the special purpose grand jury's work is wrapping up, will be answered or at least will have a perhaps a little better idea or some kind of, you know, reasonable basis for inference about what exactly is in the future here in Foughton County. So, now what's going to happen here? I'm a new host Lukas Bodolsky. I'd like to tell you about Karknet 10. Karknet is the

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All right, so tomorrow I want to put myself in the shoes of Fanny Willis here and you're far better positioned to do that than I am. If I were in her role right now, I would say, wow, between now and the 24th, there is going to be a full court press by the defense bar, by the conservative

before anybody sees it. But I have this other possible response, which is, I can act on the recommendations

of that special grand jury any time I want. I can bring that report before a regular grand jury and ask for indictments. I can bring the transcripts of testimony before and I don't have to wait. That's just about whether the report's going to become public. I can bring whatever indictments I want to bring tomorrow. And so do you think we should be on the lookout for actions prior

“to the 24th or do you think she is likely to defer to Judge McBernie's consideration of that?”

Just curious for you to put yourself in her shoes and game out how you would be thinking about this.

Look, I think anything is possible and I've just learned to expect the unexpected

with this investigation in particular. Now, the DA's office advises this grand jury and so what's in this report should not be a surprise to them. They might not agree with everything that the grand jurors voted to do and remember for anything to end up in that final report. It has to be agreed upon by a majority of the grand jurors. So it could be very different from what the DA wants to do. And we don't know as Professor Christ said, we don't know how detailed this

report is going to be. Are they going to get into prosecutorial strategy here? You know,

we've uncovered evidence that would get you to a Rico charge against these people. But we really

“think you should go for a more straightforward conspiracy to commit election fraud charge.”

I don't necessarily think so. This is a panel of laypeople. I don't expect most of them to be lawyers or super into strategy, although maybe they watch a lot of the on order. At the same time, I would think that the DA would probably wait until McBernie's hearing on the 24th. They've been pretty deferential to him this entire time. And so I would think that they would wait for him. And my thought is that initially, if the grand jury wants to make the report public and the DA

was okay with that, I would think that Judge McBernie would sign off on that. And there may be wouldn't be a need for a hearing like this. I don't know. But then again, maybe the DA's office wants to get ahead of all of this and kind of go for the surprise and issue an indictment quickly

“to try and cut some deals. I'll be very interested to see one area that I think is really ripe”

for deal cutting has to do with those alternative Republican electors. In the November-ish time frame, I'm getting my my timeline correctly. We saw an effort to break up the electors. 11 of them had the same legal representation. And they were attempting to kind of pick all of them off so they each had different lawyers so that presumably they could negotiate plea agreements with some of them, get the smaller fish and exchange for information on the big fish. Judge McBernie eventually said,

you know, we can separate out David Chaffer, the chairman of the Georgia Republican Party, who, as we understand, had a bigger role in helping assemble this slate of fake electors. Potentially, they're going to cut deals with some of these other electors in order to get more information on the chairman. We don't really know, but that's an area to watch for sure. Anna, what do you think? If you were advising Fanny Willis, would you suggest move quickly,

get ahead of this or would you suggest, hey, it's already been 18 months. It's really two years since she announced the investigation, you know, take your time, deal with the publicity, let the report come out or assuming it does and let the public digest just how bad the facts are before you do anything. What do you think, leave aside? What do you think she's going to do? What do you think the right approach is? Initially, when I was thinking about what I would do with

I was Fanny, Fanny Willis, I thought that I would wait for the report to come out because I thought that it would be politically. The move that she would make to show her county to show anyone who's been watching this investigation that these grandgers did recommend indictments if that is indeed what they've done and that there is evidence to support it. I certainly have changed my mind about that in the past few hours as I've been thinking about it more. I think that

there is a reason that secrecy is important or discretion is important in investigations.

or what information they've uncovered and granted a lot of that information is already in the public sphere because of the January 6 report and a lot of the information that was uncovered during the congressional hearings. But at the same time, you know, this is a very different investigation with a different objective under different law and the full-on county special purpose grant jury heard from witnesses that the January 6 select committee was not able to

“hear from and I think if I'm Fanny Willis, I probably don't want potential targets in the”

investigation having advanced notice that might be in that report. Again, as we've mentioned previously, it kind of depends on whether or not this report is just kind of a very thin, more general report or whether it's a kind of more, you know, thick account of the events and the evidence. We don't know that but I think that I would move quickly if I'm Pony Willis at this point. So it seems like from talking to all of you like there's just a huge number of variables here

which suggests to me that there isn't a particularly rich history of precedent to deal with. You know, in a lot of systems you can say well it'll likely be done x-way because in

past cases it always has been done x-way. But here we seem to be assuming a lot of

a lot of degrees of freedom. Anthony, what do we know about the history of Georgia special purpose grand jury and how they have dealt with not that there are situations like this? But how they have dealt with publicity questions as well as the speed at which indictments have followed in the past? I mean, that's another open-ended question. There just haven't been that many and there certainly haven't been any that have dealt with issues of this magnitude in terms of

both complexity importance and I think public awareness. So I have often used the term unchartered waters because there really is no precedent for this at all. So I don't know how quickly things might happen because there's not even I don't think we really have anything that we could call a body of presidential behavior. The only other thing I would actually want to add kind of go back to a previous question. Another factor here is I think the the political factor of the fact

that the general assembly just convened today and the legislative session is always one that I think

“if you're a local official you may not want to ruffle more feathers than you have to and so you”

really want to make sure that everything you were doing is kind of batting down and done you know without you know or beyond reproach. And so I think there's another political factor here and part of that is even heightened by the fact that one of the previous targets of the investigation is now the lieutenant governor of Georgia and the president of the Georgia State Senate. So there's a little bit of a I think an additional political wrinkle here that won't influence her decision

making for sure but I certainly think it impacts the kind of approach that that she might take. But yes, you know at the end of the day the fact that these these kinds of investigations are so rare. The few that I'm even aware of happening for most part rural counties where there's some local corruption they really haven't had again this kind of statewide magnitude and statewide importance as this particular special purpose grand jury's work has had. So interstate, not just statewide.

Yeah, a couple other wrinkles to throw into the decision making. First, both Fanny Willis and Donald

Trump will be on the ballot in 2024 and of course this whole process should be devoid of politics but of course it's impossible to divorce the two and it's something the DA has to be mindful of as she's moving forward with this. The Justice Department in Washington is of course very wary of doing anything close to elections and if we have primary starting to happen February, March of next year,

“I think the DA will have wanted to have put a lot of this behind her at this point.”

There had been rubblings in the past of launching a recall effort against the DA. That hasn't really come to pass as far as I'm aware of but of course she must be mindful of the potential

devoted so much time so many resources to an investigation like this going after a former president

“when we still have all this violent crime in Atlanta when there still is a giant backlog of COVID”

cases so or sorry of legal delays as a result of the COVID pandemic and so those are factors that are out there that could help drive decision making. There's also a statute of limitations on a lot of these crimes and and Professor Christ you'll have to kind of jump in here and tell me what it is for a lot of these charges but I'm thinking many of them are three four years and so if we're talking about things that happen in late 2020, early 2021 the DA's office has to be very mindful of that.

As for president special grandjuries are super rare in Georgia as everyone has mentioned and they're only really been a couple in the last dozen or so years but one of them that did happen in Metro Atlanta there was a special grandjuries stood up into cab county which is right next to

“Fulton that looked at contracts having to do with our department of watershed management and it was”

looking at potential corruption in that system. Well the special grandjury ended up issuing a sweeping set of recommendations that named everyone from the CEO of the county on down and the judge overseeing that grandjury actually ended up sitting on that report for a really long time the form of the grandjury actually ended up suing the chief judge in order to get that report released and it was something like seven or eight months later so there is precedent of waiting a long time

to get a report out but also of seeing the light of day at the end. All right so the next thing that we know is going to happen is this January 24th hearing and tomorrow all we know is on the agenda for that hearing is the question of the publication of the report right? Yes as far as I know

“and so we really have zero road map to any other aspect of I mean within the range of”

of reasonable possibility is anything from indictments tomorrow to indictments never.

Absolutely and it makes it tough for someone like me who's been tracking this to kind of plan out my next couple weeks and months and year we could see indictments tomorrow as you said or it could be completely quiet for a year and we just have no clue. All right so there's one area and this is an area that you've covered especially richly in in your podcast where it seems to me there is a little bit more clarity than on the when question which is the what question. As you alluded to

earlier there are ways to think about charges you might bring that are relatively narrow from forgery matters to sort of garden variety kind of fraud stuff to a broader conspiracy to this Rico conspiracy kind of charge if you were imagining the sort of minimalist version versus the maximalist version what is the report look like under those circumstances in other words what's a reasonable range of expectation and can we can we get on the what front a little bit better than from

you know from tomorrow to never. Well a lot of this we need to differentiate between what we might

see in this report which as I mentioned before is written by two dozen citizens of Fulton County these could be bus drivers, teachers, nurses these are not folks who are super up to date on how the legal system works versus what the DA ultimately decides to do with it. A lot of it might just be laying out in this report what they've uncovered so here's what happened in the US attorney's office in January 2020 here's what happened in this effort to infiltrate the election data from

coffee county Georgia and then maybe a section on what to do there aren't a whole lot of requirements about what needs to be in this report so as we've talked about we don't know if it'll be thick or thin there was a one recent special grand jury presentment that was only 24 pages there was another this to cab water contracts when I mentioned that was something like 80 so obviously much more detail

in the latter but ultimately it'll be up to the DA to decide what to do with this evidence presented

and even you know they've been sitting in on all of these sessions these prosecutors with all these folks who've been interviewed by the grand jury so there could potentially be things

indictment if they wanted to go narrow they could stick solely if they wanted to this

leaked phone conversation between Brad Raffinsberger and Donald Trump and then they could look at criminal solicitation to commit election fraud and kind of narrowly go that way Rico if you want this to stick in a court of law you would need to paint a really broad narrative about a conspiracy that stretched over a long period of time and potentially part of a pattern that included multiple swing states they would really have to go pretty big with it in order to

get charges to stick so there's a real strategy question I don't know how much in this special presentment the jurors will be helping with that are really clued into that as I mentioned it's not a work product of the DA's office so it almost doesn't matter what the DA wants to do they're

going to present it in their own way yeah so I want to follow up on that because that never ceases to

amaze me this idea that this is actually written by the grand jurors I have always thought of grand jurors as you know they are a formal instrumentality of the court formally it's you know 23 regular citizens but in fact the DA is sort of the legal advisor to it and does all the work Anthony and to Georgia special grand jurors really write their own reports and if so is that a good idea let me I don't know what's so again because they're so rare you know

it's really don't know how much you know or what the the processes for writing it as to whether it's a

“good idea you know I've had a lot of thought recently about this because I I think you know”

when I teach about grand jurors and and I don't teach a lot of I don't teach criminal but I do teach a little bit about the prosecution power in in constitutional law and the purpose the traditional purpose of the grand jury and and the way that it's been for you know framed for you know a lot of the cases that I teach or the few that I teach you know it's like the grand jury is there to be the safeguard against governmental abuse and prosecutorial abuse and and it's there to serve

this grand well no pun intended but it's there to to serve this higher order this higher purpose and and then we get the kind of you know traditional painting of the grand jury or a grand jury as you know though and die to ham sandwich right because they just they're just a mouthpiece it's

always a ham sandwich it's never always beef never grilled cheese yeah you maybe we should

start switching it up you know but you know there so there is maybe something virtuous about giving this awesome power this responsibility to you know average citizens of full and county to say you know we think you know we think that there's something you know a foot here that was potentially unlawful we want you to investigate it and we want you to take the charge and and there are there are some risks there but there is something kind of virtuous about citizens taking the lead

and and trying to do right by by the people of Georgia and the people of full and county so maybe it'll be you know maybe we'll get this report and I'll change my tune and I'll say oh

“maybe this is a bad idea but I think in theory there is something virtuous about putting this”

in the hands of of everyday citizens and and I think that it potentially could reinforce though legitimacy of any prosecutions funny willest might bring because of course there's going to be charges laid against her that these are partisanly motivated she's a political actor this is about political retribution it's not about justice but those charges are much easier to deflect if you can say you know this group of people who know better than almost anybody else

what happened here in full and county to the you know the best of their knowledge and their best of ability the best of their ability to turn over this evidence you know and they they wrote this report and they made these recommendations you know I think there's something there's

“something to be said about that but again I think because special purpose grand jury are so rarely”

used and because this one in particular is of such great magnitude importance you know maybe maybe we'll feel differently afterwards but but I will reserve judgment on that until after the 24th and what do you think are you relieved at the possibility for for democratic independence and and belief in the purity of the grand jury system relieved at the possibility that this may

to have a major report about the conduct of election meddling in fault and county Georgia in 2020

“it should be written by professionals I'm up to minds about it I think like Anthony is on on one”

hand I think that there is as Anthony mentioned there is this you know communicative or expressive value to a group of just regular citizens in full and county coming together to write this report and it really goes back to some of the functions that grandjuries originally had you know back in the 17, 1800s so it's very interesting to me that this report could come out that is potentially you know written by the grand jurors themselves and kind of has this communicative

way of kind of calling out misconduct or criminal wrongdoing at the same time I think we can't

lose sight of the fact that what this report says will be the public's first kind of perception

or potentially could be the public's first look at some of the evidence for eight and ongoing criminal investigation obviously that depends on whether or not the report is made public and

“and all that as we've mentioned previously and I and I think that there is some real harm that could”

be done if if there's not that kind of you know legal expertise that is there and that's not to say that these that these jurors have not you know developed that expertise they've been on this case for a long time I would assume that they have a very solid grasp of of what the potential charges are and the elements of the crimes at this point but it is a tough question because you know there's an ongoing criminal investigation here that could potentially lead to indictments

and a trial and it certainly is the case that whatever jury pool there will be for a potential trial I would assume it would be very hard to find a juror who has not at least been aware of what comes out from this report with all of that said we don't know you know if the grand jurors are writing this report we don't know the extent I mean I assume that they that they are and it is certainly their choice to decide what to do but we don't know the extent of the district attorneys involvement

because special purpose grandjuries are so rare in Georgia every special purpose grandjury that I have looked into and every report that I've read is very different and the DA is legally the grandjuries legal advisor so I would be very surprised if the district attorney's office did not at least have a pretty heavy hand in advising the grandjury as it writes this report so I think that summarizes my thinking on it at this time. All right tomorrow wrap us up here

what will you be looking for given given that you just said that you know indictments could happen

as early as tomorrow or as late as never what are you looking for over the next few days what

would you know between now and the 24th what will you be reporting on when you call your sources what will you be asking them about? Sure I mean the the first thing is any peep that comes out of the DA's office they have been declining to comment today folks are not answering their phones I want to know what they're thinking at this point in the process how closely they've they've looked at this special present meant do they have a strategy at this point

are there indictments in the pipeline that they're hoping to bring in front of a regular grandjury and short of that how they they might respond to a hearing like what's scheduled on the 24th we should see arguments that are filed ahead of time with the court so we'll we'll get a little preview a couple days before the hearing so does the DA want to keep this thing private will they show their cards at all about any potential charges um do they agree with the grandjury at all

“you know I think an important part of this and and that and professor Christ had kind of”

mentioned it and all kind of summarized it as the jaded political reporter that I am which is this special grandjury gives the DA political cover if she wants it it made sense for her to ask

democrat and heavily democratic county Joe Biden won with 70% of the vote or something like that

“in 2020 looking into pretty much exclusively republicans and their conduct in 2020 it is so”

much easier for her if she agrees with whatever the special grandjury says because then she can say hey it wasn't me driven by my political agenda I'm following with what all the nurses and bus drivers and teachers on this special grandjury recommended and if she breaks from that she'll have to explain herself to the press and to the public and she'll have to give a really good reason why so I'll be looking for that and I'll be very interested to see if any potential targets or folks

who are worried that their good name could be further dragged in the mud in this report if they come forward and try and stop this in one way or another the one group we really have heard very little from throughout all of this Donald Trump's lawyers he hired three attorneys here in Georgia and we really haven't heard a peep from them publicly no court filings or anything like that since they've been hired Donald Trump himself has sent out a couple social media posts about

racist vicious prosecutors or talking about funny willists as this young and ambitious prosecutor at Atlanta but he has held his fire a little bit and so I'll be curious if Team Trump is tempted to start waiting into this now or if they would wait for a potential indictment to come down before they really you know take their gloves off and start going for it and do you read the their silence as tactical or as simply evidence that they have no idea what's going on any more than we do

and therefore they're you know keeping their powder dry I mean a little bit of both right I mean the thinking for a long time was that maybe the special grand jury would recommend charges for folks around Trump but not Trump itself because it's so hard to go after a former president

because he you know he'll say things but he'll never cross the line so maybe Trump would be

scared from being named in something like this now legal sources of mine aren't so short many

“think that there's enough out there to indict him if funny willist so chooses but I think”

it's very much a strategic thing to not be talking and to wait and see what's going on at the same time Donald Trump as we have learned is not one who likes to take advice so if he feels compelled he might be one to kind of step out and potentially in a truth social poster now on his new reinstated Twitter account maybe we'll hear something from him we are going to leave it there tomorrow hallermen and a bower Anthony Michael Christ thank you all for joining us today

thank you thanks the law fair podcast is produced in cooperation with the Brookings Institution and today it was produced in cooperation with no I'm Oz Band of Goat rodeo as well hey folks who else is going to bring you a podcast like today where we get this kind of group of people together to chew over the

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