Fulton County Superior Court Judge Robert McBurney speaks at the Fulton County courthouse, Tuesday, July 11, 2023, in Atlanta. A grand jury seated in Atlanta will likely consider whether criminal charges are appropriate for former President Donald Trump or his Republican allies for their efforts to overturn his 2020 election loss in Georgia. (AP Photo/Brynn Anderson)
Up to 23 grand jurors will soon decide whether to indict those who tried to overturn Georgia’s 2020 election, a case that could entangle former President Donald Trump.
Fulton County prosecutors have spent over two years probing these efforts, spurred in part by a phone call Trump made to Georgia’s Secretary of State asking him to “find” the votes he would have needed to beat Joe Biden in Georgia. Prosecutors have also been investigating a plan to submit a slate of false electors, among other threads.
District Attorney Fani Willis, has suggested she will ask a grand jury for indictments in August and has told law enforcement to prepare for a “significant public reaction.”
Trump has called the investigation a “witch-hunt” and his lawyers have filed multiple motions seeking to disqualify Willis and quash the probe. The Georgia Supreme Court recently declined to grant one of the motions. Another is still pending.
Fulton County District Attorney Fani Willis, shown here with Special Prosecutor Nathan Wade, presented public comments in the courtroom during a January 2023 hearing. (Matthew Pearson/WABE)
Why are grand jurors’ names public?
After a grand jury votes to charge someone with a crime, the presiding judge then reveals the indictment in open court. When an indictment becomes public, jurors’ names will appear on the document.
Georgia code provides a form specifying the format of indictments, including a line to list grand juror names. That’s not the case in federal indictments, which sometimes include just the name of the grand jury foreperson.
In Georgia, grand jurors who are not present for a vote are crossed out. How each grand juror voted is not listed.
Grand jurors are just regular citizens and service is compulsory, so you could imagine how jurors in a high-profile investigation, like a gang case or, say, an indictment of a former president, might worry about their safety.
Pete Skandalakis, executive director of the Prosecuting Attorneys Council of Georgia, says there is no set mechanism or precedent for concealing only grand jurors’ names.
Attorney Gabe Banks, a former prosecutor in Fulton County, says listing names “is done as a way to provide each defendant notice in the event that he/she wants to challenge the indictment process.”
“We do not live in a society where police and prosecutors get to make unilateral decisions to move forward with charges,” says former DeKalb District Attorney Gwen Keyes Fleming. “That’s why the grand jury system was set up. The system does not work without the participation of ordinary residents of the county.”
Fleming says transparency is a big part of that, so the public can trust the integrity of the process. That might be especially important in a case like this one.
How does a grand jury work?
Two grand juries currently operate at a time in Fulton County. They each meet two days a week in a secure room inside the Fulton County courthouse.
Each grand jury term, the panels can weigh hundreds of cases on a variety of serious crimes, from burglary and assault to murder.
Here’s how Fulton County Superior Court Judge Robert McBurney explained the task to this term’s new grand jurors as they were sworn in.
“The test right now isn’t guilt or innocence,” he said. “You are making a very narrow decision, whether there is probable cause to believe that the person named in the indictment committed the crime or crimes set forth in the indictment.”
If at least 12 of 23 jurors believe that standard is met, the case moves to trial. At least 16 grand jurors have to be present during the prosecutors’ entire presentation of a given case for a quorum.
Prosecutors may bring in some witnesses to testify in front of the grand jury, but the defendants’ perspective is not usually represented at this point, except in a few specific circumstances.
Fulton County District Attorney Fani Willis appears in a courtroom on Jan. 24, 2023. (Matthew Pearson/WABE)
Wait, what’s the difference between a grand jury and a special grand jury?
Last year, Willis asked the Fulton County Superior Court to empanel a special grand jury to investigate attempts to interfere with the 2020 election result. The special grand jury is an investigative tool where the jurors look into one case for up to a year.
The special grand jury heard from 75 witnesses, some under subpoena, over eight months and compiled a final report. The special grand jury recommended multiple indictments.
Still, it is up to the district attorney to decide whether to pursue criminal charges. Indictments require the vote of a regular grand jury, which hears all kinds of cases during their two-month term of service.
What’s all this talk about RICO?
RICO stands for Racketeer Influenced and Corrupt Organizations. The federal RICO statute was initially created in 1970 to go after organized crime. Georgia has its own RICO law.
Racketeering is when two or more people conspire together to commit, attempt or ask another person to commit two or more specific crimes, known as “predicate acts.” Georgia code lists about 40 offenses that can count toward a RICO case, like making false statements.
Fleming says RICO cases can help convey a narrative of how a complex web of people and crimes fit together.
“Using a RICO statute is a strategic one because prosecutors like to keep their cases simple,” Fleming says. “When you have a complex case with multiple actors who may or may not have committed multiple crimes, sometimes the simplest way to convey that story to a group of jurors is by fitting it under the RICO statute.”
Willis is known for pursuing RICO cases, including most prominently in prosecuting the Atlanta Public Schools cheating scandal.
“The reason that I am a fan of RICO is I think jurors are very, very intelligent, but they want to know the whole story,” Willis told reporters last year. “They want to make an accurate decision about someone’s life. So RICO is a tool that allows a prosecutor’s office and law enforcement to tell the whole story.”
Prosecutors are also likely pursuing charges for other criminal violations, like criminal solicitation to commit election fraud. Fleming says those charges may appear in the same indictment, even if they don’t follow under the RICO charges.
How does Fulton County’s investigation fit with the many other cases focused on Trump and fallout from the 2020 election?
Criminal investigations into efforts to overturn the 2020 election have entered a new phase this summer.
In Michigan, the attorney general has charged 16 people for their role in a fake elector scheme similar to the one in Georgia. And those charges came just hours after Trump said that he is a target of the federal probe into the Jan. 6 insurrection. That’s the investigation being led by the U.S. Department of Justice Special Counsel Jack Smith.
Typically, these sorts of target letters precede an indictment. That would be a third indictment of the former president, all before the Fulton grand jury hears the case in Georgia. Trump is facing criminal charges in a hush money case in New York and a classified documents case in federal court in Florida.
Willis and Smith’s investigations likely overlap in many respects. For example, both sought testimony from Georgia Gov. Brian Kemp, who rebuffed Trump’s requests for help interfering with the election result. Smith’s office has also reportedly pursued more information about the context around Trump’s phone call to Raffensperger and footage of the vote count at State Farm Arena in Atlanta.
Joyce Vance, a former U.S. Attorney for the Northern District of Alabama who has followed both investigations closely, says Georgia’s case could still be significant even if federal prosecutors bring their charges first.
“If by losing steam we mean, does the press have less interest or is it less in the public eye, well maybe,” Vance says. “But these prosecutions have merit individually and they have merit collectively.”
One difference between the two cases: Trump could potentially jam up a federal trial or pardon himself or others if he is re-elected. In Georgia, pardons can only be considered by a review board five years after the completion of a sentence.
