Special Grand Jury Convenes In Georgia To Investigate Trump Election Interference

Above: Fulton County District Attorney Fani Willis addresses potential jurors as Fulton County Superior Court Judge Robert McBurney is seen on a video screen during proceedings to seat a special purpose grand jury in Fulton County, Georgia, on Monday, May 2, 2022, to look into the actions of former President Donald Trump and his supporters who tried to overturn the results of the 2020 election. The hearing took place in Atlanta. -Credit: AP Photo/Ben Gray

Georgia Public Broadcasting (PBS) reports, Trump election probe special grand jury selected in Atlanta:

A special grand jury was selected Monday for the investigation into whether former President Donald Trump and others illegally tried to influence the 2020 election in Georgia.

The investigation has been underway since early last year, and Fulton County District Attorney Fani Willis took this unusual step of requesting the special grand jury to help it along. She noted in a letter to the chief judge that the special grand jury would be able to issue subpoenas to people who have refused to cooperate otherwise.

The chief judge ordered the special grand jury to be seated for a period of up to a year, beginning Monday. Of the pool of about 200 people called from the county master jury list, 26 were chosen to serve — 23 grand jurors and three alternates. Special grand juries focus on investigating a single topic and making recommendations to the district attorney, who then decides whether to seek an indictment from a regular grand jury.

Because of the intense public interest in this case, the court made arrangements for parts of Monday’s selection process to be broadcast live. Now that the special grand jury has been selected, however, everything it does will happen in secret.

Fulton County Superior Court Judge Robert McBurney, who’s been tasked with overseeing the special grand jury, told the people summoned to the jury pool that they would not be hearing a trial, but would instead be serving on an investigative special grand jury looking into actions surrounding the 2020 general election.

“Now it’s time for 26 members of our community to participate in that investigation,” McBurney said.

Willis has confirmed that her team is looking into a January 2021 phone call in which Trump pushed Georgia Secretary of State Brad Raffensperger to “find” the votes needed for him to win the state. She has also said they are looking at a November 2020 phone call between U.S. Sen. Lindsey Graham and Raffensperger, the abrupt resignation of the U.S. attorney in Atlanta on Jan. 4, 2021, and comments made during December 2020 Georgia legislative committee hearings on the election.

McBurney said the grand jurors won’t begin meeting until June and won’t meet every week. They will be notified in advance of when they need to be there, and there’s some wiggle room if they can’t make it to every session as only 16 are needed for a quorum, he said.

McBurney then led the 200 potential grand jurors in swearing an oath to give truthful answers about their qualifications.

He explained that grand jurors must be at least 18, must be U.S. citizens and must have lived in Fulton County for the past six months. Anyone who’s an elected official or has been for the last two years, anyone convicted of a felony or anyone who’s served on a Fulton County jury or grand jury in the last year is not qualified to serve, McBurney said.

The investigation involves actions surrounding the 2020 general election, and it is important that grand jurors “bring an open mind to the process,” the judge said. Anyone who is already convinced that a crime did or did not happen should say they have a conflict when asked, McBurney said.

After identifying other potential conflicts — for example, plans to be out of the country for an extended time, having to care for someone after a major surgery — McBurney went through the first 100 potential jurors and asked them individually — addressing them only by number — to say whether they have a conflict. A quarter of the grand jurors said they had a conflict and the judge and prosecutors began questioning them privately to determine whether they could be excused. Then he closed the courtroom so he and prosecutors could speak privately with those selected.

While the district attorney’s office will generally be steering the investigation, grand jurors will be able to question witnesses who appear before them. If they believe there are other witnesses they would like to hear from or documents they would like to see, they have the power to issue subpoenas.

Norman Eisen, special counsel to the House Judiciary Committee during the first Trump impeachment and Donald Ayer, a deputy attorney general in the George H.W. Bush administration, write at the New York Times, Will Trump Face a Legal Reckoning in Georgia?

Over 2,300 text messages to and from Mark Meadows, a former chief of staff for Donald J. Trump, offer stunning real-time details of the efforts to overturn the 2020 presidential election. Not least among the revelations are Mr. Meadows’s repeated overtures to the Georgia secretary of state, Brad Raffensperger, with Mr. Meadows pressing the Georgian to be in communication with the White House.

Mr. Trump and Mr. Raffensperger eventually spoke, resulting in Mr. Trump’s now-infamous demand that the secretary “find 11,780 votes” — just one more vote than Joe Biden’s margin of victory in the state.

On May 2 we see the latest consequence of those efforts: the opening of a special grand jury by District Attorney Fani Willis in Fulton County, Ga., to gather evidence relating to possible criminal charges against Mr. Trump and others associated with him. As important as congressional investigations are, Ms. Willis’s work may present the most serious prospect of prosecution that Mr. Trump and his enablers are facing.

We understand that after Robert Mueller’s investigation and two impeachments, the prospect of Mr. Trump actually facing accountability may be viewed with skepticism. Most recently, he seems to have avoided charges by the Manhattan district attorney, Alvin Bragg.

But Ms. Willis, a Democrat, has a demonstrated record of courage and of conviction. She has taken on — and convicted — a politically powerful group, Atlanta’s teachers, as the lead prosecutor in the city’s teacher cheating scandal.

And she is playing with a strong hand in this investigation. The evidentiary record of Mr. Trump’s postelection efforts in Georgia is compelling. It is highlighted by a recording of Mr. Trump’s Jan. 2, 2021, call with Mr. Raffensperger, in which Mr. Trump exhorted Mr. Raffensperger to “find” those votes.

The tape also contains threats against the secretary and his staff that had an element of coercion, like Mr. Trump’s warning that failing to identify (nonexistent) fraud would be “a big risk” to Mr. Raffensperger and to his lawyer. The recording is backed by voluminous evidence that Mr. Trump likely knew full well he had lost, including acknowledgment from administration officials like his attorney general, William P. Barr, and an internal Trump campaign memo admitting that many fraud claims were unfounded. As a federal judge noted in finding that Mr. Trump’s efforts to overturn the election were likely criminal, the former president “likely knew the justification was baseless and therefore that the entire plan was unlawful.”

What’s more, Georgia criminal law is some of the most favorable in the country for getting at Mr. Trump’s alleged misconduct. For example, there is a Georgia law on the books expressly forbidding just what Mr. Trump apparently did in Ms. Willis’s jurisdiction: solicitation of election fraud. Under this statute, a person commits criminal solicitation of election fraud when he or she intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud.

The decision to impanel a special grand jury is itself another indicator of the peril Mr. Trump may face. Under Georgia practice, special purpose grand juries are typically used for focused investigation of a matter and have the power to subpoena witnesses. Special grand juries develop expertise in a single case over a sustained period (here up to 12 months), as opposed to regular grand juries, which hear many matters over a shorter period. Unlike regular grand juries, the special grand jury cannot issue an indictment, but any charging recommendations are presented by a district attorney to a regular grand jury, which can then indict based on the special grand jury’s work.

The special grand jury will begin issuing subpoenas for some of the 30 or so witnesses who have refused requests for voluntary interviews. Those initial witnesses will then be served and will start appearing in June. Mr. Trump and those closest to him have a history of rushing to court to fight subpoenas, but they are unlikely to be given the opportunity in this first wave. Careful prosecutors usually start with less controversial witnesses, and Ms. Willis is a careful prosecutor. If Mr. Trump or those closest to him are served, that is when subpoenas are most likely to be challenged in court — but that is probably months away.

If Mr. Trump is charged, it will set off a legal battle. There are substantial legal defenses that Mr. Trump could attempt. He could argue that he has constitutional immunity from prosecution for his acts while president [does not apply to ex-presidents, and there is the crime-fraud exception to executve privilege], that his words were protected by the First Amendment or even that he acted in absolute good faith because he genuinely believed that he had won. [An insanity defense].

The judicial system will ultimately decide if these defenses will work. But soliciting election fraud is not within the scope of official presidential duties protected by immunity, the First Amendment does not protect criminal activity, and a president cannot successfully claim good faith when he was repeatedly told by his own officials that there was no fraud. Still, no one should consider the case a slam-dunk.

The case also in no way diminishes the importance of the House of Representatives’ Jan. 6 committee. In fact, the committee will most likely aid the Georgia prosecution while going about the business of its own investigation. (Ms. Willis and the committee have reportedly already been in contact.) For example, litigation with Mr. Meadows disclosed key details of the alleged plot to overturn the Georgia election. An email the committee filed from one of the lawyers helping Mr. Trump, Cleta Mitchell, included a detailed 11-point memo about overturning the election. Operating outside Washington, Ms. Willis might have taken years to obtain that email and other evidence like it.

Jury trials, which both of us have tried and supervised, are living events, and success is never assured. But in Georgia, if it reaches that stage, the evidence is strong, the law is favorable, the prosecutor is proven, and the cause — democracy itself — is just.