A final report produced by an Atlanta-area special grand jury investigating efforts by President Donald Trump and his allies to overturn Trump’s 2020 election loss in Georgia will remain mostly sealed as a local prosecutor considers charges in the case, a judge ruled.
McBurney scheduled the release for Thursday.
The decision comes after a Jan. 24 court hearing at which Fulton County District Attorney Fani T. Willis pressed McBurney to keep the report sealed to protect the ongoing criminal investigation and the rights of potential “defendants” in the case — language that suggested that charges may be filed based on the grand jury’s findings.
In that hearing, Willis told McBurney that charging decisions in the case were “imminent.”
On Monday, McBurney disclosed in his ruling that the grand jury had “provided the district attorney with exactly what she requested: a roster of who should (or should not) be indicted, and for what, in relation to the conduct (and aftermath) of the 2020 general election in Georgia.”
The judge agreed with Willis that releasing the full report at this time would violate due process of “potential future defendants” because what was presented to the grand jury was a “one-sided exploration” of what happened.
“The consequence of these due process deficiencies is not that the special purpose grand jury’s final report is forever suppressed or that its recommendations for or against indictment are in any way flawed or suspect,” McBurney wrote. “Rather, the consequence is that those recommendations are for the district attorney’s eyes only — for now. Fundamental fairness requires this.”
But McBurney ruled that parts of the report should be made public, including the panel’s concerns that witnesses may have lied under oath — witnesses that he said the grand jury did not identify. “While publication may not be convenient for the pacing of the district attorney’s investigation, the compelling public interest in these proceedings and the unquestionable value and importance of transparency require their release,” McBurney wrote.
A spokesman for Willis did not immediately respond to a request for comment.
McBurney’s decision marks a potentially consequential new chapter in a criminal inquiry that could present fresh legal peril for Trump and his allies.
The report’s 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.
In December, the U.S. House committee investigating the Jan. 6, 2021, attack at the 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 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 will 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, U.S. 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, his attorneys and top advisers, and 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 at 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 that 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.”
Last month, 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. But they did not respond when asked if Trump had been given notice that he’s a target of the investigation.
In the Jan. 24 hearing, Willis disclosed for the first time that the special grand jury had heard from 75 witnesses and reviewed “countless exhibits” as part of its investigation, but she offered no other details about what the panel 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 told McBurney.
But attorneys representing a coalition of media organizations had urged McBurney to unseal the report, calling it a “matter of profound public interest that goes to the heart of the nation’s democratic forms of government.”
The biggest unknown beyond the grand jury’s findings is how Willis will use the report and how quickly charges, if they are filed, could come. To charge someone, Willis would have to present her case to a regular grand jury that has the power to issue criminal indictments.
In Fulton County, grand jury terms begin every two months, with the latest panels seated early last month. Some have questioned whether Willis is already presenting her case — or whether she’ll wait until a new grand jury is seated in March because of legal rules that allow a defendant to request a speedy trial within two months of the end of the term in which they are indicted.