ATLANTA — An Atlanta-area district attorney investigating whether former president Donald Trump and his allies broke the law when they sought to overturn Trump’s 2020 election loss in Georgia said charging “decisions are imminent."
“In this case, the state understands the media’s inquiry and the world’s interest, but we have to be mindful of protecting future defendants’ rights,” Willis said. “It is not appropriate at this time to have this report released.”
Though Willis did not reveal the contents of the report, her reference to potential “defendants” suggests that charges may be filed based in part on the jury’s findings.
Willis’s comments came during a 90-minute court hearing Tuesday on whether to release the final report of the special grand jury, which was formally dissolved two weeks ago after a roughly eight-month investigation into alleged 2020 election interference. Willis disclosed for the first time that the grand jury had heard from 75 witnesses and reviewed “countless exhibits” as part of its investigation but offered no other details about what the grand jury found or what her timetable might be for potential indictments.
Another prosecutor on the case, Donald Wakeford, said the district attorney’s office was “not opposed” to the eventual release of the grand jury report. “It’s a question of timing, and now is just not the time,” Wakeford said.
Wakeford, an assistant Fulton County district attorney, said prosecutors were still examining the the grand jury’s findings as part of their consideration of potential criminal charges and insisted it was “premature” to even have a discussion about when or if to release the report.
Fulton County Superior Court Judge Robert McBurney, who oversaw the grand jury and will ultimately make the decision about the report’s release, seemed skeptical of the prosecution claims.
McBurney repeatedly pressed Willis and her team to explain how the grand jury’s report would undermine an investigation that involved many of the same witnesses and evidence that has already been publicized as part of the U.S. House committee investigating the Jan. 6, 2021, attack at the U.S. Capitol.
Wakeford, one of the lead prosecutors on the election interference case, argued the special grand jury was looking at issues in a “different light” and was focused specifically on Georgia — though he did not say whether the panel had uncovered new evidence in the case.
At one point, McBurney pressed prosecutors on what was stopping a member of the grand jury from going to the media and disclosing what was in the report. Wakeford suggested the judge could issue an order that might prevent jurors from talking about their deliberations until the formal investigation is complete, but McBurney questioned if an appeals court would uphold such an order.
McBurney did not immediately rule on the report’s release and gave no timetable for his decision, though he said he wouldn’t immediately make the report public, whatever he decides. “There will be notice,” the judge said. “There will be no rash decisions.”
The hearing marked a new chapter in a sprawling criminal inquiry that could present fresh legal peril for Trump and his allies. The report’s potential release comes against the backdrop of other investigations into alleged efforts by Trump and his supporters to subvert the 2020 election results in key battleground states.
Last month, the U.S. House committee investigating the Jan. 6, 2021, attack at the U.S. Capitol issued its final 800-plus-page report, which cited evidence from thousands of documents and more than 1,000 witness interviews. The committee was not conducting a criminal investigation, and its conclusions therefore have no legal bearing. Still, it argued that Trump, with the help of allies, orchestrated a plan to stay in office despite his election loss.
In recent weeks, a special counsel appointed by Attorney General Merrick Garland issued subpoenas to election officials in states including Georgia, as well as Trump campaign associates, as part of a Justice Department inquiry into the efforts Trump and his allies undertook to reverse his 2020 defeat.
In Fulton County, Willis will decide whether to criminally charge Trump or his allies. But her decision is likely to be heavily influenced — and perhaps given political cover — by the findings of the Atlanta-area residents randomly selected in May to serve on the special grand jury.
The investigative body of 23 jurors and three alternates picked from a pool of residents from Atlanta and its suburbs was given full subpoena power for documents and the ability to call witnesses. The jurors’ identities have not been made public — and may never be.
From June to December, a litany of prominent Republicans appeared before the committee, including Georgia Gov. Brian Kemp, Sen. Lindsey O. Graham (S.C.) and former New York mayor Rudy Giuliani, along with dozens of other witnesses — including some who have not previously given public testimony on what they knew about Trump’s efforts to overturn the election.
Willis, a longtime Fulton County prosecutor who was elected as district attorney in 2020, launched her investigation into alleged election interference days after a recording was made public of a January 2021 phone call Trump made to Georgia Secretary of State Brad Raffensperger urging him to “find” enough votes to overturn his defeat in Georgia. It was one of several calls Trump and his associates made to Georgia officials prodding them to undertake efforts that would change the results of the state’s presidential election, which Trump lost by fewer than 12,000 votes.
In the two years since, Willis has indicated publicly and in court filings that her office’s investigation has expanded to include several other lines of inquiry, including false claims of election fraud that Giuliani and other Trump associates made to Georgia state lawmakers; threats and harassment against Georgia election workers; and alleged efforts by unauthorized individuals to breach election data from voting machines in Coffee County, Ga.
Another intense focus of Willis’s inquiry has been the creation of an alternate slate of Republican electors who met at the Georgia Capitol in December 2020 and signed certificates falsely claiming Trump had won the election in Georgia. In court filings, attorneys for the “fake electors” have said their clients were merely acting to preserve Trump’s rights amid a lawsuit seeking to overturn the Georgia election results, which had already been certified by the state.
But those actions have drawn scrutiny from state and federal investigators — including Willis — who are examining the larger coordinated plan behind it, including the involvement of Trump, the former president’s attorneys and top advisers as well as state and local Republican operatives. They are also investigating whether the “fake elector” scheme was intended to disrupt the transfer of power during Congress’s certification of the presidential election votes.
In court filings, Willis has described her investigation as an examination of “multi-state, coordinated efforts to influence the results of the November 2020 elections in Georgia and elsewhere.” She has publicly said that she is looking not only at potential violations of state law but also criminal conspiracy — hinting that she may employ Georgia’s expansive statute on racketeering to prosecute the case, as she has in other high-profile trials in Fulton County, including an ongoing case against the rap artist Young Thug.
In September, Willis told The Washington Post that her team had found credible allegations that crimes had been committed. “If indicted and convicted, people are facing prison sentences,” Willis said.
At least 18 people have been notified they are targets of the election interference investigation, according to court documents and statements from their attorneys. That list includes Giuliani, who was serving as Trump’s lawyer at the time, and all the alternate Republican electors — a group that includes David Shafer, chairman of the Georgia Republican Party.
Willis’s office has not said whether Trump is a “target” of the Fulton County investigation, which the former president has called a “witch hunt.”
On Monday, Trump’s Georgia-based legal team, in a statement, implied there had been no formal contact between the former president and his legal team and Fulton County prosecutors. “We have never been a part of this process,” the attorneys said.
They did not respond when asked if Trump had been given notice that he’s a target of the investigation.
Under Georgia law, special grand juries are distinct from regular grand juries because the panel can focus extensively on a specific investigation for a longer time. A special grand jury cannot issue indictments, but it can publish a report of its findings along with recommendations.
But McBurney raised questions Tuesday about whether the special grand jury’s report “constitutes a presentment” under Georgia law — a legal term of art typically used to describe a report that recommends indictments, which the Fulton County panel cannot do. The judge also pointed to a 1961 Georgia appeals court decision that found grand juries cannot “impugn” or suggest misconduct of a public official unless those accusations are included in an indictment.
Tuesday’s hearing included arguments from Fulton County prosecutors and lawyers representing nearly a dozen media organizations who argued for immediate release of the grand jury report, calling it a “matter of profound public interest that goes to the heart of the nation’s democratic forms of government."
“We believe the report should be released now and in its entirety," Thomas M. Clyde, an Atlanta attorney representing the news media, argued, adding that it’s “not unusual" for prosecutors and the court system to release public details about an ongoing case. “The jurors themselves asked for it be published. There’s enormous public interest in what they have said.
Though attorneys for targets of the investigation or those potentially mentioned in the grand jury report had the opportunity to make their arguments for keeping the report private, none did.
McBurney called the matter “extraordinary" — both in terms of what the panel was investigating and the use of a special grand jury, which is rare in Georgia.
“This is not simple,” McBurney said, adding that he would take a “little time” to consider his decision and that his order would allow both sides to weigh in before anything is made public.
“No one’s going to wake up with the court having disclosed the report on the front page of the newspaper," McBurney said.