ATLANTA — Perhaps the most intriguing revelation included in the portions of the Fulton County special grand jury’s final report released last month was that at least one witness may have lied under oath.
The jurors, who heard from about 75 witnesses as they investigated whether former President Donald Trump and his allies criminally meddled in Georgia’s 2020 elections, didn’t specify whom they suspected might have perjured themselves or why they believe they caught them in a lie.
The report simply notes that a majority of the grand jury believed “that perjury may have been committed by one or more witnesses testifying before it.” Members also recommended that District Attorney Fani Willis “seek appropriate indictments for such crimes where the evidence is compelling.”
But in a recent exclusive interview with the Atlanta Journal-Constitution, five members of the special grand jury, who spoke on the condition of not being named because of concerns about their safety and privacy, shed more light on why they believe perjury might have been committed. They declined, however, to name names.
“There was testimony presented (by a witness) and then there would be questioning (from prosecutors) that confronts them with a previous statement to the exact opposite,” one juror said.
Another mentioned a witness who was asked about whether he or she had prior knowledge of the plan to appoint “alternate” GOP electors. When the person responded no, prosecutors then presented an email about the electors with their name on it.
Hard to prove
Under Georgia law, a person convicted of lying under oath can face punishment of up to 10 years in prison. Perjury is also considered a predicate act under Georgia’s racketeering statute, which is one of the laws Willis said she’s examining as part of the criminal investigation.
But perjury is a notoriously hard crime to pin down in court, legal experts say.
Not only must prosecutors prove that someone lied under oath about something “material,” or substantial. They also must show that the perpetrator knew he or she was making a false statement at the time.
“A mistake is not going to count. Misremembering is not going to count. Even being misleading is not perjury, so long as you said the truth,” said Anthony Michael Kreis, a Georgia State University constitutional law professor.
The Fulton special grand jury, which was dissolved in January, spent almost eight months investigating whether Trump or his allies broke any Georgia laws as they tried to overturn Democrat Joe Biden’s win.
In their nine-page final report, jurors laid out recommendations for who Willis should indict. With the exception of the perjury claim, all of jurors’ suggestions were sealed by Fulton Superior Court Judge Robert McBurney, presumably until Willis makes charging decisions.
Among the witnesses jurors heard from during the course of their criminal investigation were leaders in state government and key members of Trump’s inner circle. The latter included former personal attorney Rudy Giuliani, U.S. Sen. Lindsey Graham and onetime national security adviser Michael Flynn.
One of the jurors who spoke to the Journal-Constitution aid that “most people pled the Fifth rather than lie to us. So I don’t think there was a tremendous amount of perjury that happened.”
Perjury charges rare
Legal experts interviewed by the Journal-Constitution said perjury charges are rarely pursued in either state or federal courts, largely because they are so hard to prove. But when such charges are brought, they typically challenge a witness’ testimony, taken under oath, before a grand jury or during a trial.
Observers said the Fulton special grand jury functioned more like a federal grand jury, where prosecutors more frequently use the panels as investigative tools and hear sworn testimony from multiple witnesses. Unlike regular grand juries, the special grand jury did not have indictment powers, but there was a court reporter present when witnesses gave testimony, people with knowledge of the probe said, providing a highly accurate record of what jurors heard.
Bob Rubin, a veteran Atlanta defense attorney, said witnesses are typically wise enough when under oath “to use some kind of wiggle room language like ‘I can’t recall’ or ‘to the best of my knowledge.’”
“It’s hard to prove intent,” said Rubin, who represented several witnesses who testified before the special grand jury. “People can often say, ‘at the time I said it, I really thought that was true.’ But then later, ‘I’ve now learned something different.’”
If prosecutors were to pursue any perjury charges, it would ultimately be up to a trial jury to determine whether someone knowing and willingly lied under oath.
Marietta attorney Ashleigh Merchant said juries tend to be forgiving, especially when it comes to witnesses relying on information given to them by an employee.
“If the president, for example, or someone in office relied on information that somebody else gave them, are they actually perjuring themselves lying about that information being true, or are they reasonably relying on other people?” said Merchant, a former Fulton public defender.
Notable Georgia cases
One of the most notable perjury cases in Georgia in recent years involved former DeKalb County CEO Burrell Ellis. A jury found him guilty of three counts in 2015 for lying under oath to a special grand jury about his role in awarding county contracts.
Ellis served eight months in prison for perjury and attempted extortion before the Georgia Supreme Court ruled in 2016 he didn’t receive a fair trial. Charges were ultimately dropped after the DeKalb DA declined to retry the case.
Three years earlier, Andrea Sneiderman was convicted of perjury for lying under oath at the trial of Hemy Neuman, who was convicted of murdering Sneiderman’s husband in the Dunwoody daycare case. On the witness stand, Sneiderman denied being romantically involved with Neuman, but at least one eyewitness testified otherwise.
In the Trump inquiry, there has been some speculation about whether prosecutors could use a perjury charge — or the threat of one — to cut a deal with investigation targets for their cooperation.
Kreis said there are other statutes prosecutors are more likely to use. He mentioned potentially utilizing laws about filing false documents, for example, to flip some of the more minor “alternate” Republican electors.
“That, I think, is a much more likely possibility because that’s an easier case to prove in the first place,” he said. “So, I don’t think that it’s implausible that there isn’t some wheeling and dealing happening or about to happen. I just don’t think perjury is probably in that mix.”
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(Atlanta Journal-Constitution staff writer Bill Rankin contributed to this article.)
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