The result of a court hearing in Atlanta could signal the start of a process that may lead to former president Donald Trump or his allies facing criminal charges for trying to overturn Joe Biden’s 2020 election win in Georgia.
The jurist who has been supervising the investigation, Fulton County Superior Court Judge Robert McBurney, heard arguments on Tuesday about whether to release a report compiled by a special grand jury that has been investigating Mr Trump’s efforts to reverse his 2020 election defeat to Mr Biden, including his calls to Peach State election officials and a plot to submit forged electoral college documents to the National Archives to give then-vice president Mike Pence a reason to hijack the 6 January 2021 joint session of Congress by declaring him and Mr Trump the winners of the election.
A coalition of news organisations is seeking the immediate release of the report, while Fulton County District Attorney Fani Willis asked the court to refrain from making it public while she considers whether to seek criminal charges against anyone named in it.
“We think for future defendants to be treated fairly it’s not appropriate at this time for the report to be released," she said. She added that "decisions are imminent" regarding whether she will seek indictments from a regular grand jury against people involved in Mr Trump’s push to reverse his loss to Mr Biden.
Judge McBurney said he would not issue a “rash decision” and promised the parties that he would not surprise them by suddenly ordering the report’s release without giving both sides notice and time to file an appeal.
“No one’s going to wake up with the court having disclosed the report on the front page of a newspaper,” he said.
The Fulton County judge added that it was “somewhat extraordinary” for the arguments to have taken place to begin with, citing the subject matter under investigation by the grand jury, “alleged interference with the presidential election”.
The special purpose grand jury empaneled at Ms Willis’ request wrapped up its six-month investigation last month and has recommended that its’ report be made public. It is expected that the report will recommend criminal charges against some of the figures involved in Mr Trump’s efforts.
The jurist who has been supervising the investigation, Fulton County Superior Court Judge Robert McBurney, will review the report and recommend to the court's chief judge that the special grand jury be dissolved. The judges of the county Superior Court will then vote on whether to let the special grand jurors go or whether more investigation is necessary
Because a special grand jury cannot issue indictments, it will be up to Ms Willis to decide whether to seek criminal charges from a regular grand jury.
Ms Willis, who began the investigation nearly two years ago, has said she will go where the facts lead. It would be an extraordinary step if she chooses to bring charges against Trump himself.
“Even if he’s acquitted by a jury, for him to face trial and to have a public trial with evidence on the record would be an epic thing for American history,” Georgia State University law professor Clark Cunningham said.
The judge was not expected to make a ruling on the release at the hearing itself, but a decision is expected to be made soon after.
What have we learned about the investigation?
For more than a year after opening the investigation, Ms Willis revealed little. But, ironically, once the special grand jury began meeting in June, its proceedings shrouded in mandatory secrecy, hints about where the investigation was headed began to come out.
That’s because whenever Ms Willis wanted to compel the testimony of someone who lives outside Georgia, she had to file paperwork in a public court docket explaining why that person was a “necessary and material witness.” Additionally, anyone fighting a summons had to do so in public court filings and hearings.
In the paperwork Ms Willis filed seeking to compel testimony from some Trump associates, she said she wanted to know about their communications with the Trump campaign and others “involved in the multi-state, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere."
Prominent Trump allies whose testimony was sought included former New York mayor and Trump attorney Rudy Giuliani, U.S. Sen. Lindsey Graham of South Carolina, former White House chief of staff Mark Meadows and former national security adviser Michael Flynn, as well as John Eastman and other lawyers who participated in Trump's attempts to stay in power.
“We learned from the identity of the witnesses that this is a far-ranging conspiracy that she’s looking at,” said Norm Eisen, who served as special counsel to the House Judiciary Committee during the first Trump impeachment and co-wrote a Brookings Institution report analyzing the “reported facts and applicable law” in the Fulton County investigation.
Have there been setbacks?
A number of Trump advisers and allies fought Ms Willis' attempts to bring them in for testimony, but Ms Willis prevailed in most cases.
“I think that augurs well for the pretrial skirmishing to come if she charges,” Eisen said.
Ms Willis had a notable misstep when she hosted a fundraiser for a Democratic candidate for lieutenant governor even as her investigation zeroed in on the state’s fake electors, including Burt Jones, the Republican nominee for lieutenant governor. McBurney said that created “a plain — and actual and untenable — conflict” and ruled that Willis could not question or pursue charges against Jones, who won election in November.
What’s been the focus of the investigation?
The information that has come out publicly has indicated that Ms Willis was looking at the following:
- Phone calls by Trump and others to Georgia officials in the wake of the 2020 election
- A group of 16 Georgia Republicans who signed a certificate in December 2020 falsely stating that Trump had won the state and that they were the state’s “duly elected and qualified” electors
- False allegations of election fraud made during meetings of state legislators at the Georgia Capitol in December 2020
- The copying of data and software from election equipment in rural Coffee County by a computer forensics team hired by Trump allies
- Alleged attempts to pressure Fulton County elections worker Ruby Freeman into falsely confessing to election fraud
- The abrupt resignation of the U.S. attorney in Atlanta in January 2021
What about that infamous phone call?
In a Jan. 2, 2021, phone call between Mr Trump and Georgia Secretary of State Brad Raffensperger, the president suggested that the state's top elections official, a fellow Republican, could “find” the votes needed to overturn his narrow loss in the state to Democrat Joe Biden.
A month later, Ms Willis sent letters to Raffensperger and other top state officials instructing them to retain records because she was investigating “attempts to influence the administration of the 2020 Georgia General Election.”
Mr Trump told Mr Raffensperger he needed 11,780 votes, one more than Biden won. That was a mistake, Cunningham said, because the specific and transactional nature of that comment makes it hard to say he was just generally urging Raffensperger to look into alleged fraud.
But other legal experts have said prosecutors could struggle to prove criminal intent, which requires showing that actions were taken purposely, knowingly, recklessly or negligently.
What charges might be considered?
In her February 2021 letters to state leaders, Ms Willis said she was looking into potential crimes that included "solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election’s administration."
Many believe Ms Willis will pursue charges under the state Racketeer Influenced and Corrupt Organizations statute, commonly known as RICO. In a high-profile prosecution when she was an assistant district attorney, she used that law successfully to secure charges against Atlanta educators in a test cheating scandal. She has also used it more recently to target alleged gang activity.
The state RICO law, which is broader than the federal version, requires prosecutors to prove a pattern of criminal activity by an enterprise, which could be a single person or a group of associated individuals. It allows prosecutors to assert involvement in a pattern of criminality without having to prove that each person participated in every act.
Eisen said RICO seems “most commensurate with the nature of the people testifying and the questions that she wanted to ask."
As the special grand jury was working, Ms Willis informed some people that they were targets of the investigation, including Giuliani and the state's 16 fake electors. It's possible others received similar notifications but haven't disclosed that publicly.
What has Trump said?
The former president has consistently called his phone call with Raffensperger “perfect” and has dismissed the Fulton County investigation as a witch hunt.
Criminal defense attorney Drew Findling, part of Trump's legal team in Georgia, in August said the focus on Trump “is clearly an erroneous and politically driven persecution.”
Trump allies have also denied any wrongdoing.
