The January 6 Project
Everything You Ever Wanted to Know About Georgia Special Purpose Grand Juries But Were Afraid to Ask
Listen to the author discuss this piece with our Editor in Chief on the Lawfare Podcast.
Fulton County district attorney Fani Willis is closing in on Donald Trump’s 2020 election meddling: CNN reports that Willis could begin issuing indictments as soon as December.
The news arrives just five months after a special purpose grand jury was empaneled to investigate Trump’s gambit to overturn the results of the 2020 presidential election. Since then, she has subpoenaed testimony from an increasingly long list of the former president’s allies, including the former mayor of New York, Rudy Giuliani; former White House Chief of Staff, Mark Meadows; and the senior senator from South Carolina, Lindsey Graham. On Oct. 7, Willis added two more high-profile names to her list: former House Speaker Newt Gingrich and former National Security Adviser Michael Flynn.
All of which has America wondering: What the f@#% is a special purpose grand jury, anyway? Can it really not indict anyone? If so, what does it even mean to be a “target” of a grand jury that can’t issue indictments? And why hasn’t Meadows been held in contempt for dodging his scheduled appearance in Georgia?
What follows is a broad-strokes primer on the special purpose grand jury system in Georgia, how the special purpose grand jury operates, and what to expect as the probe accelerates toward an endgame.
What’s the deal with special purpose grand juries in Georgia?
While the Fifth Amendment requires indictment by a grand jury for any “capital, or otherwise infamous crime,” that right has never been incorporated to the states. As a result, the law and practice of grand juries varies state by state. In Georgia, the state criminal code establishes two distinct types of grand juries: regular grand juries and “special purpose” grand juries.
Let’s start with a crash course on the regular old grand jury. As elsewhere, your run-of-the-mill Georgia grand jury is composed of 16 to 23 laypeople, plucked from a pool of grudgingly eligible residents on the county jury roster. Selected jurors meet periodically throughout a fixed term of court—in Fulton County, it’s two months. Broadly speaking, the activities of the grand jury during that period can be divided into two functional categories.
Most readers will be familiar with the first category, which might be thought of as the “criminal” or “accusatory” function of the grand jury. Georgia law, like the Fifth Amendment, requires indictment by a grand jury in most felony cases. As such, the bulk of a regular grand jury’s work involves screening the state’s evidence to ensure it passes muster for probable cause. During the two-month term, prosecutors will present evidence and request indictments in hundreds of discrete cases, for crimes that range from perjury to murder. If at least 12 jurors find probable cause to believe that the accused committed a crime, then the grand jury returns a “true bill” of indictment or a “special presentment” charging that individual with a criminal offense. All of which is pretty standard Law and Order-type grand jury fare.
Likely less familiar to the general public is the second category, which is known as the grand jury’s “civil” or “investigative” function. Per O.C.G.A. § 15-12-71, regular grand juries carry out periodic civil investigations of certain government operations and facilities. Some of those investigations are mandatory; for example, the statute requires an annual inspection of the county jail. But regular grand juries also retain discretionary powers to “inspect or investigate” a wide range of county authorities. At the end of its term, the grand jury can issue a public report—called a “general presentment”—explaining the results of its investigation. Federal grand juries used to issue reports too; that’s why the word “presentment” actually appears in the Fifth Amendment alongside “indictment.” But at the federal level, the practice of grand juries writing reports has almost entirely died.
What, then, is so special about a special purpose grand jury? Its distinctiveness has at least three dimensions.
For starters, special purpose grand juries are convened to investigate a specific topic. While a regular grand jury might hear evidence in hundreds of discrete cases during its brief two-month term, a special purpose grand jury typically focuses on wrongdoing related to a single event or subject matter. Though special purpose grand juries empaneled in Georgia have primarily been used to investigate public corruption, they are useful vehicles to investigate organized criminal activity or other complex issues of inquiry. The idea is that special purpose grand juries, unburdened by the heaps of cases that bedevil regular grand juries, can develop a deeper understanding of the convoluted issue at hand.
Second, special purpose grand juries are not limited to the typical two-month fixed term of regular grand juries but, instead, are empaneled for any time period required to complete its investigation. That flexibility permits prosecutors to take on complex investigations that would normally exceed the brief term of a regular grand jury.
Finally, unlike regular grand juries, Georgia’s special purpose grand juries cannot return a “true bill” of indictment. But they do possess the power to issue comprehensive public reports, albeit after review by the supervising judge. The report can recommend indictments for criminal acts uncovered during the investigation, and the district attorney can then pursue those indictments by empaneling a separate, regular grand jury.
Yet a special purpose grand jury is not limited to recommendations concerning indictments. As I discuss later in this piece, special purpose grand juries have, in the past, made a slew of recommendations related to government and ethics reforms, as well as non-criminal disciplinary sanctions for wrongdoers.
What’s more, the report’s factual findings need not be limited to criminal wrongdoing. Consistent with a rich common law tradition of grand juries functioning as watchdogs for misconduct by public officials, previous special purpose grand juries have published findings related to conduct that falls short of criminal culpability.
The legal basis for that specific reporting function is no longer rooted in the common law, but in statute. Georgia courts have held that only those grand juries vested with a “specific statutory authority to file a report” can issue findings that incidentally reflect “negligence or incompetence” of public officials—provided, of course, that the criticism remains within the scope of the grand jury’s investigation and subject to due process requirements.
Though no reported case has specifically applied that principle to the report of a special purpose grand jury empaneled to investigate alleged criminal law violations, there can be no doubt that special purpose grand juries are vested with a statutory authority to file a report. And, given the broad scope of the Fulton County special purpose grand jury’s empaneling order, findings related to unindictable yet condemnatory behavior by public officials would arguably fall within its wheelhouse.
Are special purpose grand juries unique to Georgia?
State statutes authorizing special purpose grand juries, or “special grand juries” as they are usually called in other jurisdictions, are common. According to a 2021 Thomson Reuters survey of state grand jury statutes (yes, there really is a 2021 Thomson Reuters survey of state grand jury statutes!), at least 26 states permit the empanelment of special grand juries or some variation thereof. While some of those statutes establish bodies similar to Georgia’s special purpose grand jury, others deviate in important respects. As one example: in Georgia, a special purpose grand jury’s final report is generally made public at the behest of the special purpose grand jury; in Virginia, the default rule provides that a special grand jury’s report “will be sealed and not open to public inspection, other than by order of the court.”
State statutes authorizing special grand juries followed the enactment of federal legislation in 1970, when Congress authorized the empanelment of federal special grand juries as a part of the Organized Crime Control Act. Today, 18 U.S.C. § 3331 authorizes the attorney general to empanel a special grand jury to investigate criminal activity in a jurisdiction.
Like its Georgia counterpart, a federal special grand jury is dedicated to a single investigative focal point. And a federal special grand jury can also issue reports on noncriminal conduct: 18 U.S.C. § 3333 (a)(1) allows a special grand jury to publish reports on “misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee.” Though initially used to investigate organized crime, federal special grand juries have been empaneled for other complex inquiries: investigations into the collapse of the Enron Corporation and environmental wrongdoing at a nuclear weapons facility in Rocky Flats, Colorado, are two examples.
So, variations of the Georgia special purpose grand jury statute exist at both the federal and state levels. In that respect, at least, Georgia’s special purpose grand jury statute isn’t all that special—though it remains special in our hearts.
Can you explain Georgia’s special purpose grand jury procedure in excruciating and unnecessary detail?
Why, sure! Let’s break the process down into four phases: empanelment, investigation, dissolution, and publication.
O.C.G.A. § 15-12-100(a) authorizes the empanelment of a special purpose grand jury for the purpose of investigating “any alleged violation of the laws of this state” or “any other matter subject to investigation by grand juries as provided by law.” The process begins when the chief judge of the county superior court, either on his or her own motion or on petition from the district attorney or an elected public official, submits a request for a special purpose grand jury to the judges of the superior court. Then the judges vote. If a majority vote in favor of the request, the special purpose grand jury can be empaneled.
Following jury selection and the appointment of a supervising judge, the special purpose grand jury’s investigatory work begins. While Georgia Code provides little guidance regarding the day-to-day operations of a special purpose grand jury, the statute carves out roles for three key players during the investigation: the jurors, the district attorney, and the judge. Let’s examine each in turn.
First, there are the grand jurors. Like a regular grand jury, special purpose grand jury members gather periodically—perhaps two or three times a week—to hear testimony or review evidence. In theory, at least, the grand jurors exercise significant control over the investigation. Collectively, the jurors can direct the investigation as they see fit, subject to constitutional limits and the lawful scope of the inquiry. They are vested with vast powers to compel the production of documents or testimony, and they can question witnesses following the prosecutor’s direct examination. It will be up to the jurors, and the jurors alone, to evaluate the evidence and decide what goes into the final report.
Nominally, the district attorney serves as the special purpose grand jury’s “legal adviser.” In practice, however, the district attorney usually directs the investigation. Once the special purpose grand jury is empaneled, the district attorney can subpoena witnesses or compel evidence to present to the grand jury. She isn’t bound by the usual rules of evidence, such as hearsay, and witness testimony isn’t subject to cross-examination by defense counsel. And, while the special purpose grand jury members remain the final arbiters of the report’s findings and recommendations, the district attorney’s office “draw[s] up all indictments and presentments” requested by the grand jury. In other words: The district attorney’s office ghostwrites the report for the grand jurors. What’s more, no matter what the special purpose grand jury recommends, it’s ultimately up to the prosecutor to decide if she will seek indictments through a separate, regular grand jury process.
A supervising judge oversees the investigation. O.C.G.A. § 15-12-101(a) requires the chief judge of the county’s superior court to appoint a judge to “supervise and assist the special purpose grand jury in carrying out its duties and powers.” The judge charges the special purpose grand jury as to the scope of its powers and duties, and “shall require periodic reports of the special purpose grand jury’s progress, as well as a final report.” The supervisory role also involves issuing orders related to the special purpose grand jury’s work.
The governing statute places no minimum or maximum time limits on the special purpose grand jury’s investigation. Instead, the county’s superior court judges decide when the special purpose grand jury should be dissolved. Here’s how it works:
O.C.G.A. 15-12-101(b) requires the supervising judge to recommend that the special purpose grand jury be dissolved in two circumstances: (1) when he determines that the special purpose grand jury’s investigation has been completed, or (2) when the special purpose grand jury issues a report announcing the completion of its investigation. Once the supervising judge submits his recommendation, the county’s superior court judges put the question to a vote. If most judges oppose the recommendation, then jurors will be directed to conduct further investigation for a specified time period. But if most judges agree, then the special purpose grand jury stands dissolved.
O.C.G.A. § 15-12-80 governs the publication process for special purpose grand jury reports. That provision authorizes the special purpose grand jury to recommend the publication of “whole or any part” of its final report. The statute further permits the special purpose grand jury to “prescribe the manner of publication.” In the past, special purpose grand juries have requested publication in local legal gazettes.
Once the special purpose grand jury makes its recommendations to the court, the statute provides that the judge “shall order the publication as recommended.” However, case law has established that superior court judges retain authority to review grand jury reports prior to publication and, if necessary, to order that the report be redacted, sealed, or expunged.
What’s the scope of the Fulton County special purpose grand jury investigation?
On Jan. 20, 2022, District Attorney Fani Willis petitioned Chief Judge Christopher Brasher to empanel a special purpose grand jury for the purpose of investigating “the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the state of Georgia.” On Jan. 24, following a vote by a majority of the 20 judges of the Fulton County superior court, Brasher issued an order approving Willis’s request. The order provided that the special purpose grand jury, in investigating the facts and circumstances set out in Willis’s petition, “may make recommendations concerning criminal prosecution as it shall see fit.”
Willis has signaled from the start that she will direct the special purpose grand jury to consider a wide range of potential criminal law violations. In a letter Willis sent to Georgia Governor Brian Kemp in February 2021, she described the scope of the inquiry as follows:
[P]otential violations of Georgia law prohibiting the 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.
Notably, in approving Willis’s request for the special purpose grand jury, Brasher specified that the authorization includes “any overt acts or predicate acts relating to the subject of the special purpose grand jury’s investigative purpose.” That stipulation could allude to an investigative focus on violations of Georgia’s RICO statute, which legal analysts suspect could supply the basis for criminal charges against Trump and his associates involved in the “fake electors” scheme and multi-state plot to overturn the election.
Why can’t the Fulton County special purpose grand jury issue indictments?
Because the Georgia Court of Appeals said so.
Interestingly, nothing in the statute explicitly prohibits special purpose grand juries from issuing indictments. As noted, O.C.G.A. § 15-12-101 directs the supervising judge to require “periodic” and “final” reports from the special purpose grand jury. The statute remains silent on whether those reports could contain indictments. And another provision, O.C.G.A. § 15-12-102, provides that special purpose grand juries are vested with all the powers and duties of regular grand juries unless the statute says otherwise. That provision would suggest that special purpose grand juries, like regular grand juries, can issue indictments. Right?
For nearly four decades, grand jurors and district attorneys seemed to operate under that assumption. During that period, at least one special purpose grand jury issued indictments without objection on appeal. (And it’s possible that more did so, though it’s difficult to provide a precise estimate because reported cases rarely indicate which statutory provision provided legal footing for the grand jury’s work.)
But the Georgia Court of Appeals took a different approach in 2011, when the issue was raised in Kenerly v. State. Kenerly involved a special purpose grand jury empaneled in Gwinnett County to investigate land deals made by local political officials. The special purpose grand jury returned indictments against a county commissioner, Kevin Kenerly, charging him with bribery and failure to disclose financial interest. Kenerly moved to quash the indictment, arguing that special purpose grand juries are not authorized to return criminal indictments under the statute.
The Georgia Court of Appeals agreed. In construing the statute, the court appealed to the maxim expressum facit cessare taciturn, a canon of construction that presumes matters not expressly provided for by statute were deliberately omitted by the legislature. If the legislature intended special purpose grand juries to have the power to indict, the court reasoned, then it would have said so.
Additionally, the court noted that its earlier decision in State v. Bartel “concluded that special purpose grand juries conduct only civil investigations.” The supposedly civil nature of special purpose grand juries thus weighed against reading the statute to provide for a power to issue criminal indictments.
Kenerly is a confounding decision. O.C.G.A. 15-12-102 expressly provides that the statutory provisions governing regular grand juries apply to special purpose grand juries, too. Presumably, that would include the power to issue indictments or presentments, as set out in O.C.G.A. § 15-12-74 and O.C.G.A. § 15-12-71. And, as explained below, the idea that special purpose grand juries conduct only civil investigations is plainly wrong.
Nonetheless, the Court of Appeals’s decision still stands and, as a result, the Fulton County special purpose grand jury can only recommend indictments. If Willis ultimately decides to pursue criminal charges, she will need to empanel a separate, regular grand jury.
Wait a second. The special purpose grand jury’s investigation is a civil investigation, not a criminal investigation? And why does it matter, anyway?
Sigh. No. But the question repeatedly crops up in litigation related to the special purpose grand jury’s investigation.
Relying on Kenerly and Bartel, as well as the fact that special purpose grand juries cannot issue indictments, Trump associates have repeatedly argued that the Fulton County special purpose grand jury is a civil grand jury, not a criminal grand jury. (See here and here and here and here.)
Why? In short: The argument could help reluctant witnesses delay or dodge subpoenas to testify. If the special purpose grand jury is a civil body, the district attorney’s authority to compel the testimony of witnesses could be weakened in two important respects.
First, the civil versus criminal distinction impacts the applicability of legal privileges or immunities that could shield public officials from being compelled to appear before the special purpose grand jury. At a hearing in August, Kemp contended that the doctrine of “sovereign immunity” bars the district attorney from hauling him into court to testify about his official duties. Similarly, Graham has maintained that his appearance before the grand jury would offend the Constitution’s Speech or Debate Clause, which provides that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.”
But both sovereign immunity doctrine and the Speech or Debate Clause have been interpreted to contain exceptions for witness testimony by officials in criminal proceedings. As such, it is advantageous for the likes of Graham and Kemp to contend that the special purpose grand jury’s investigation is categorically not a criminal proceeding; doing so provides a way to skirt those potential criminal exceptions.
Second, whether the special purpose grand jury is civil or criminal bears on the applicable procedure for compelling out-of-state witnesses to travel to Georgia for an appearance before the grand jury. While jurisdiction to subpoena a witness usually ends at a state’s borders, all 50 states have adopted some variation of a cooperative, interstate process to compel the testimony of out-of-state witnesses in criminal proceedings.
Under the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, a witness residing in State A can be compelled to testify in State B if a local judge in State A issues a summons directing him or her to do so. The statutory provisions require the judge to find that the witness is “material” and “necessary” to the out-of-state grand jury’s investigation, and that a summons to appear in another state will not cause “undue hardship” on the witness.
As the Uniform Act’s title would suggest, the statute applies only in criminal grand jury proceedings. By contrast, in civil actions arising under state law, there is no similar uniform interstate procedure to compel the “live” (that is, in-person) testimony of witnesses located outside the state. Ordinarily, when a witness resides out of state, the party seeking his or her appearance must rely on deposition testimony in lieu of live testimony.
But that option would saddle Georgia prosecutors with the burden of traveling to the state where the witness resides. And deposition testimony is not always a satisfactory substitute for live testimony: jurors might get a better sense of a witness’s demeanor and credibility in-person, and they can ask impromptu questions following the prosecutor’s direct examination of the witness.
It should come as no surprise, then, that several Trump associates have used Kenerly as a springboard to argue that Georgia prosecutors do not have standing to compel their testimony under the Uniform Act. That was the case with Jenna Ellis in Colorado and Jacki Pick Deason in Texas. As the two women fought subpoenas in their respective home states, they argued that the civil nature of the special purpose grand jury requires prosecutors to follow the more cumbersome rules of civil procedure to compel the appearance of out-of-state witnesses.
Thus far, judges in Georgia and elsewhere have overwhelmingly rejected the view that the special purpose grand jury’s investigation is civil rather than criminal. Here’s a running list of judges who have weighed in and explicitly rejected the idea: Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia; Judge Gregory Lammons of the Eighth District Court of Colorado; and Judge Robert McBurney, the special purpose grand jury’s supervising judge on the Fulton County Superior Court.
Only the Texas Court of Criminal Appeals, which comprises nine elected Republican judges, has indicated that it would be receptive to the idea that the special purpose grand jury is a civil body. Last month, the court derailed prosecutors’ efforts to compel the testimony of Deason, a lawyer and podcast host who played a key role at two legislative hearings held in Georgia following the 2020 election. While a Dallas judge had ordered Deason to testify in Georgia by Aug. 31, she appealed on grounds that the procedure to compel the attendance of witnesses under the Uniform Act does not apply to civil grand jury investigations.
When the appeal reached the Texas Court of Criminal Appeals, the court dismissed the case as moot—saying, basically, that Deason was no longer obliged to comply with the subpoena because the deadline for her testimony had expired. But a majority of the court signaled that it would have agreed with Deason’s argument that the Uniform Act does not apply and, as such, that she cannot be compelled to testify in Georgia.
The Court of Criminal Appeals’s decision could have serious implications for Fulton County prosecutors’ ability to compel other Texas residents to appear before the special purpose grand jury in Georgia. Following the Court of Appeals decision, two witnesses who reside in Texas—Sidney Powell and Phil Waldron—reportedly failed to appear for their scheduled appearances in Georgia. (It’s unclear if Powell and Waldron have yet received a summons from a Texas judge to appear in Georgia, as required to compel their attendance under the Uniform Act. A search of public court records in Waldron’s and Powell’s respective counties of residence returned no results for filings or court orders related to the Fulton County investigation.)
So, is there any merit to the idea that the special purpose grand jury’s investigation is a civil investigation?
In short, no. Let me explain.
Let’s start at the root of the confusion: the Georgia Court of Appeals decision in Kenerly. Recall that in Kenerly the Court of Appeals read an earlier decision, Bartel, to stand for the proposition that “special purpose grand juries conduct only civil investigations.”
Kenerly’s reading of Bartel is specious, at best. For starters, the Bartel court noted that the record was unclear as to whether the grand jury at issue had been empaneled as a special purpose grand jury under O.C.G.A. 15-12-100 or as a regular grand jury under O.C.G.A. 15-12-71, which authorizes certain civil investigations of county authorities. Given the ambiguity in the record, it’s perplexing that Kenerly read Bartel to say anything definitive about the investigatory nature of special purpose grand juries.
What’s more, the idea that special purpose grand juries are purely civil bodies simply doesn’t comport with the language of the statute. Recall that O.C.G.A. § 15-12-100(a) authorizes the empanelment of a special purpose grand jury to investigate “any alleged violation of the laws of this state” or “any other matter subject to investigation by grand juries as provided by law.” The language clearly envisages that special purpose grand juries, like regular grand juries, could be used for criminal or civil investigations (or, presumably, both). While the Fulton County empaneling order clearly envisages an investigation of alleged criminal activities, previous special purpose grand juries have been empaneled to investigate civil infractions.
This explains why the Bartel court referred to the grand jury in that case as a “civil” grand jury—there, the grand jury was specifically empaneled to conduct a civil investigation into the operations of the local hospital authority. And it explains why a post-Kenerly case before the Supreme Court of Georgia, State v. Lampl, impliedly upheld the authority of special purpose grand juries to conduct criminal investigations.
Finally, that the Fulton County special purpose grand jury cannot issue an indictment does not render it a civil investigation. As Judge McBurney observed in his order denying Kemp’s motion to quash a subpoena: “Police officers, too, lack authority to indict anyone, but their investigations are plainly criminal.”
If a special purpose grand jury can’t issue indictments, what does it mean to be a target of the investigation?
Thus far, nearly 20 individuals have reportedly received “target” letters from the district attorney's office. The recipients of the letters include all 16 of Georgia’s “fake electors,” including David Shafer, the chairman of the Georgia Republican Party; Giuliani, the former mayor of New York City; and Deason, the Dallas-based lawyer and podcast host.
In federal grand jury practice, receipt of a target letter indicates that prosecutors have “substantial evidence” linking an individual to a crime. Typically, it signifies that an indictment against that individual is imminent. While there is no explicit constitutional requirement to inform a target of his or her status prior to subpoenaing testimony before a grand jury, notifying a target of his or her designation can help prosecutors avoid the appearance that the target witness’s testimony violated his or her right against compelled self-incrimination. Moreover, receipt of a target letter can also prompt recipients to flip—that is, to “cut a deal” with prosecutors before they can be indicted in exchange for information on others involved in the conspiracy.
By sending target letters, Willis appears to have taken a page out of the Department of Justice’s book (or, rather, its Justice Manual): Criminal defense practitioners in Georgia tell me that target letters are seldom, if ever, utilized in the state’s grand jury practice. Still, no matter the method of notification, designating an individual as a target of an investigation signals that he or she is a putative defendant.
Though a special purpose grand jury cannot issue indictments, there’s no reason to think that receipt of a target letter is any less significant in that context. It means Willis believes there is evidence that the targets committed a crime—and that those targets could eventually be indicted by a regular grand jury after the special purpose grand jury’s work is complete. Indeed, last month, Willis appeared to reaffirm her confidence in that belief, telling the Washington Post that some individuals could face prison sentences.
When will the special purpose grand jury release its final report?
If the special purpose grand jury releases a public report, it will be published between December 2022 and May 2023.
In the past, special purpose grand juries have been empaneled for lengthy periods. A 2012 special purpose grand jury empaneled in DeKalb County provides one metric. There, grand jurors investigated for more than a year before issuing a final report. Similarly, a 2009 special purpose grand jury empaneled in Gwinnett County investigated for approximately 11 months.
In Fulton County, the investigation is unlikely to drag on for more than a year. Judge Brasher’s order approving the empanelment of the special purpose grand jury stipulated that the investigation is “not to exceed 12 months.” And telltale signs indicate that Willis could be nearing an investigative endgame. In recent weeks, Willis has appeared to be closing in on those in Trump’s inner orbit: She has sought to subpoena several of his closest allies, including Meadows and Flynn. Meanwhile, CNN’s reporting indicates that indictments could begin to roll out as early as December.
Still, don’t expect a public report before the midterm elections. At a hearing in July, the special purpose grand jury’s supervising judge, McBurney, warned prosecutors against the idea of an “October surprise” ahead of Nov. 8. Now, with early voting in Georgia set to commence on Oct. 17, Willis has said that the investigation will “go quiet” until after Election Day.
Mark Meadows never showed up in Georgia on the day of his scheduled testimony. Why hasn’t he been held in contempt or arrested on a material witness warrant?
Because he is not (yet) legally required to testify.
Meadows is an out-of-state witness; he claims to reside in South Carolina. (He has something of a track record when it comes to claiming residency in a place where he doesn’t actually reside.)
As I explained previously, prosecutors who seek to compel the testimony of an out-of-state witness must follow the procedure set out in the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. To compel the testimony of an out-of-state witness under the Uniform Act, a local judge in the witness’s home state must issue a summons directing him or her to appear.
Securing that summons is a multistep process. Ordinarily, the Uniform Act requires the local judge to hold a hearing and find that the witness is “material” and “necessary” to the grand jury’s investigation, and that a summons to appear out-of-state will not cause “undue hardship.”
But on the day Meadows was set to testify in Georgia, a hearing date in South Carolina had not yet been scheduled, and no summons had been issued by a South Carolina judge. As such, Meadows was not legally obligated to appear in Georgia on the day of his scheduled testimony.
That’s not to say that Meadows won’t be compelled to testify, eventually. Later this month, a South Carolina judge will hold a hearing on the matter and decide whether Meadows should be ordered to appear.
Do the jurors vote to adopt the report and recommendations? And, if so, how many votes are needed?
The jurors do vote on the report. But it’s unclear how many votes are needed to adopt the report and the recommendations contained therein.
To get a grip on why there’s some ambiguity, you need to understand the two types of presentments issued by regular grand juries in Georgia.
First, a grand jury can issue a type of charging instrument called a “special presentment.” At common law, special presentments signified when a grand jury brought criminal charges on its own initiative, rather than at the request of a prosecutor. Today, regular grand juries are still able to issue charges for crimes based on jurors’ personal knowledge. But Georgia law no longer distinguishes between special presentments and indictments; functionally, they are the same.
By contrast, a “general presentment” is a report issued by the grand jury, usually at the end of its term, which summarizes the grand jury’s activities for the term. Typically, it also includes the grand jury’s findings and recommendations related to civil investigations authorized under O.C.G.A. § 15-12-71. (Here’s one example.)
With those two distinctions set out, it’s clear that the final report issued by a special purpose grand jury is a general presentment, not a special presentment. Now, let’s get back to our initial question: How many jurors need to agree to adopt the final report and recommendations?
On the one hand, O.C.G.A. § 1-3-1(d)(5) sets out the general rule of thumb, providing that “[a] joint authority given to any number of persons or officers may be executed by a majority of them, unless it is otherwise declared.” On the other hand, O.C.G.A. § 15-12-61(a) says this: “The votes of at least 12 grand jurors shall be necessary to find a bill of indictment or to make a presentment” (emphasis added).
Clearly, the latter applies to special presentments doled out by a regular grand jury exercising its powers to accuse. But does it apply to general presentments as well? Arguably, no. For example, applying the canon of noscitur a sociis might suggest that “presentment” in O.C.G.A. § 15-12-61(a) draws its meaning from the company it keeps: “bill of indictment.” As such, “presentment” means “special presentment.”
Other canons of construction could cut in either direction, but the point here is that there is no consensus. An annotated version of Georgia’s Grand Jury Handbook indicates that state district attorneys have disagreed over the question in the past, and Georgia courts have apparently never confronted the issue. [Note: You might notice that the linked annotated handbook is a dated edition. The Prosecuting Attorneys’ Council of Georgia apparently discontinued public release of annotated copies, but you can find the most updated, nonannotated edition of the handbook here.]
It’s a consequential question in a scenario where less than 23 jurors vote on the final report. On the extreme end, imagine heaps of jurors are disqualified or otherwise absent, such that only the minimum required for quorum (16) remain. Do they need nine jurors to agree to the findings and recommendations contained in the report, or 12 jurors? In a close vote, the answer could matter enormously. To be sure, it’s a highly unlikely scenario; grand jurors are disqualified from service only in a very narrow set of circumstances, and three alternate jurors were selected. But Trump—and those in his orbit—tend to attract truth stranger than fiction.
What will the final report look like?
Whether the public will ever see a final report from the special purpose grand jury is immensely complicated. It’s well within the special purpose grand jury’s discretion to recommend against the report’s public release. And there can be little doubt that named individuals will launch efforts to keep the report sealed, or at least heavily redacted. But if the report does eventually end up in public hands, it’s worth asking how the special purpose grand jury might approach its public reporting function.
To that end, what does the law have to say about the form and content of the final report? Surprisingly, the answer is: not much. Georgia Code places virtually no requirements or restrictions on the reporting function of the special purpose grand jury. On my read of the law, the special purpose grand jury can shape the report in any way it wants, subject to some restrictions imposed by Georgia’s appellate courts and review by the supervising judge.
Still, we can get a sense of what the final report might look like, because I trawled the dregs of the internet to find examples of reports issued by prior special purpose grand juries empaneled in Georgia. Inquiring minds can peruse them here and here. [One caveat: The former report spurned the litigation in Kenerly, which curbed the powers of special purpose grand juries to issue indictments. While the report directs the district attorney to issue an indictment, that indictment was quashed on appeal.]
For those who prefer to skip the finer points of local Atlanta-area corruption probes, here are a few observations gleaned from those reports:
- Generally, the factual narratives are meatier than the bare-bones recitation of facts one might expect. Both reports provide factually rich accounts of the evidence and testimony presented to the grand jury. That might strike some readers as a violation of the principle of grand jury secrecy. But Georgia law is less restrictive than federal law when it comes to secrecy; a juror may disclose anything that occurred during her term if ordered to do so by a judge. And, in any event, the statute specifically authorizes the publication of special purpose grand jury reports.
- The reports often reveal individual sources of information and provide comprehensive summaries of witness testimony. In the Fulton County investigation, that could help explain why certain individuals who are designated witnesses—not targets—of the investigation are nonetheless reluctant to appear before the special purpose grand jury. Indeed, in August, counsel for Kemp signaled that the lack of secrecy surrounding witness testimony is one reason the governor is reluctant to appear before the special purpose grand jury.
- The recommendations contained in the reports go well beyond recommendations for criminal indictments. For example, the Gwinnett report suggested ethics reforms and policy changes related to the county’s organizational structure. The DeKalb report included recommendations for indictments but also recommended “further criminal investigation” of certain individuals. And, in addition to several policy and ethics reforms, the special purpose grand jury recommended the “immediate removal” of DeKalb’s then-CEO, Burrell Ellis.
- The reports frequently criticize public officials—even when their conduct falls short of criminal wrongdoing. For example, the Gwinnett special purpose grand jury wrote that the conduct of a senior county judge, while not criminal, was “inappropriate if not unethical.” In another instance, the DeKalb grand jurors noted that they were “deeply disturbed” by the conflicting testimony of two county officials, concluding that they either perjured themselves or were “abjectly incompetent.”
Now, these reports won’t necessarily serve as templates for the Fulton County special purpose grand jury. The issues investigated by prior special purpose grand juries involved the relatively small-fry stuff of local politics: corruption in the county’s Department of Watershed Management, suspicious land purchases made by county officials. And they were issued under different mandates by people who might have adopted deeply different understandings of their role than the Fulton jurors will.
Certainly, there are other models available to the special purpose grand jury—and the district attorney’s office has telegraphed that the Fulton special purpose grand jury will take a more restrained approach than its predecessors. At a subpoena hearing in Colorado in August, Will Wooten, a prosecutor on the Fulton election probe team, had this to say about the report: “The final product of a special-purpose grand jury is a report that would, in this case, include recommendations as to criminal prosecutions—and only those recommendations.”
Of course, it’s not really up to the district attorney’s office to decide how the special purpose grand jury should approach its reporting function; in theory, at least, the jurors shape the content of the report. And nothing in the special purpose grand jury’s empaneling order limits the scope of its recommendations to criminal indictments. On the contrary, Brasher cast his language in permissive form: “The special purpose grand jury, when making its presentment and reports … may make recommendations concerning criminal prosecution as it shall see fit” (emphasis added).
Still, Wooten’s statements signal that the special purpose grand jury could produce a narrowly tailored final report: a non-evaluative recitation of basic evidentiary facts, followed by recommendations focused exclusively on indictments. While a pared-down report would certainly lose some of the expressive force of a more broad-based account of the Trump campaign’s election interference in Georgia, it could prove to be a wise choice.
For one thing, such an approach can aid the expediency of the report’s publication by reducing the risk of protracted litigation regarding the report’s content. In the past, requests by named parties to redact extraneous or embarrassing information in a special purpose grand jury report has led to significant delays. In one case, the delays were so significant that the special purpose grand jury’s foreman sued the judge overseeing the investigation, hoping to compel the report’s publication more than six months after completion.
A narrowly tailored report could also aid the perceived legitimacy of future prosecutions resulting from the grand jury’s recommendations. Willis’s investigation has already sustained allegations of partisanship. To that end, an expansive, truth-commission-like report that goes beyond the scope of criminal indictments could entrench the appearance of partiality, however unjustified. By contrast, a relatively sparse recital of factual evidence relevant to recommended indictments provides less fodder for Trump and his allies to cry “witch hunt.”
Will the special purpose grand jury recommend indictments against Trump (or his associates)?
Already, much ink has been spilled over the legal and evidentiary issues that lurk behind that question. Last October, the Brookings Institution released a 114-page report analyzing potential charges against Trump under various Georgia state laws. The report concluded that Trump faces “substantial risk of possible state charges predicated on multiple crimes.”
Legal commentators agree. Over the summer, David French, writing for The Atlantic, penned a flurry of articles dissecting Trump’s potential culpability. Washington Post columnist Jennifer Rubin declared that the Georgia investigation is “ominous” for Trump. The consensus seems to be that the evidence is legally sufficient to pass the relatively low bar of probable cause.
Beyond those analyses, conventional wisdom about grand juries suggests that Willis wields the power to lead the jurors toward the conclusion she wants. Regular grand juries are notoriously pliable tools of the prosecution. Sol Wachtler, the former chief judge of the New York Court of Appeals, once remarked that a prosecutor could influence a grand jury to “indict a ham sandwich.” That’s hyperbole, to be sure, but buried within rests a kernel of truth: Grand juries almost always indict.
Is this a ham sandwich situation? At this stage, we don’t know much about the internal dynamics of the special purpose grand jury or the precise state of the investigation. We likely won’t for many more months. But the view from this side of the veil of grand jury secrecy indicates that Willis is very much in control of the investigation.
As one metric, consider the speed and breath of it all. In a few short months, the special grand jury has solicited testimony from a motley ensemble of witnesses, ranging from bit players (Kanye West’s ex-publicist) to power players (the governor of Georgia). The sprawling nature of the probe suggests something about what’s going on behind the closed doors of the jury room: Willis is shepherding her flock of jurors toward her desired outcome. And her recent comments seem to suggest that indictments are not merely possible, but probable.
Yet the distinctiveness of a special purpose grand jury investigation could add a few wrinkles.
Consider, for example, the element of time. In regular grand jury proceedings, the grand jurors are a kind of captive audience for the prosecution. The brief duration of their tenure and the complexity of applying the law across hundreds of discrete cases doesn’t exactly foster genuinely autonomous decision-making. That is one reason why prosecutors exercise significant control in grand jury proceedings. By contrast, the special purpose grand jury’s singular focus and longer duration allows the grand jurors to develop subject matter expertise and, as such, could decrease their dependence on the prosecutor.
Then there’s the range of decisions facing a special purpose grand jury as opposed to a regular grand jury. A regular grand jury has a binary choice: issue an indictment, or not. But, notwithstanding Wooten’s comments in Colorado, the special purpose grand jury could have a smorgasbord of recommendations on the table: further criminal investigation, policy and ethics reforms, non-criminal disciplinary action, or—for Trump associates who still hold public office—impeachment. Faced with a wider range of options, grand jurors could be more inclined to gravitate toward middle-ground recommendations that focus on non-criminal sanctions. It has happened before: The Gwinnett special purpose grand jury decided to forgo recommending the indictment of a county commissioner in exchange for his “permanent removal from office.”
In short, while Willis herself appears confident that the grand jury has heard evidence to support recommendations for indictments, the specialness of the special purpose grand jury process adds a dose of unpredictability to the mix.
Is that everything I need to know?
That’s it: everything you ever wanted to know about Georgia special purpose grand juries but were afraid to ask. Are you happy now?