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- [00:00]
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Peter Beck
Hi, I'm Peter Beck, associate editor at Lawfare. You probably know me best through my mining of federal court dockets or podcasts about domestic extremism. What makes me proud to work at Lawfare is that I grew up just like you, listening to the podcast every day because I could tell that the team was the gold standard when it came to nuanced analysis about the rule of law. Now, as a member of the team, the pace of events isn't slowing down and neither is the need for analysis that keeps up without cutting corners. But none of our work happens without the support from people like you. Lawfare is a nonprofit. We always keep our content free and don't have paywalls. We rely on our readers and listeners to keep this work going, become part of our growing Lawfare community, a network of smart, informed people who are invested in understanding this moment. Just like you. Head to lawfaremedia.org support and become a material supporter. Just $10 a month or more if you're able, really makes a real difference. Plus, you'll help us continue to offer all our content for free to everyone. Thanks for listening and for caring about the things that matter.
- [02:54]
Benjamin Wittes
Foreign.
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E
I'm Marissa Wong, intern at Lawfare with an episode from the Lawfare archive for May 16, 2026 On May 11, Anna Bauer and Lawfare published over 60 transcripts and recordings that were heard by the Fulton County Special Grand Jury throughout its investigation into election interference in Georgia during the 2020 presidential election. Many of these transcripts and recordings have not been available to the public until now. For today's archive, I chose an episode from January 10, 2023, in which Benjamin Wittes sat down with Anna Bauer, Anthony Michael Kreiss and Tamar Hallerman to discuss what could happen after the Fulton County Special Purpose Grand Jury completes its investigation and report.
- [03:54]
Benjamin Wittes
I'm Benjamin Wittes and this is the Lawfare Podcast. District Attorney of Fulton County Fani Willis has completed her special grand jury investigation of election tampering in 2020. The special purpose Grand Jury has completed its report and it has been dissolved, and the supervising judge yesterday scheduled a hearing for January 24th to decide whether to make the report public. What's going to happen next? Are there going to be indictments? Are they going to wait until after the report comes out, or should we expect them imminently? We gathered in the Virtual Jungle Studio, an all star team to discuss the matter, lawfare contributor Anna Bauer, Georgia State University law professor Anthony Michael Kreiss and Tamar Hallerman of the Atlanta Journal Constitution, co host of the terrific podcast Breakdown, which has followed the special grand jury from the beginning. We went over it all. What to expect now that the report is done? Will it become public or is that really in question and what should we expect? Is a Trump indictment coming next? It's The Lawfare Podcast, January 10, a very special grand jury report. All right, Tamar, get us started here. What is the news that we learned this morning and what do we know at this stage?
- [05:37]
Tamar Hallerman
Sure, we got a two page order from Judge Robert McBurney this morning and he is the Fulton Superior Court judge who's been tasked with overseeing this special grand jury over the past eight months. Now he's been getting periodic reports from jurors as they've notified him on his on their progress in this investigation and in this order. Today he acknowledged not only that the grand jury finished its work, it's written up a final report, and that he and the majority of his colleagues on the Fulton bed bench agree that the special grand jury did its work, it fulfilled its obligation under its authorization, and that it is hereby dissolved. And what else we saw in today's order was setting of a hearing on January 24 in which parties to this investigation will debate whether this report should be made public and how much of this report should be made public. So we should expect to hear the DA's office argue their side members of the media, perhaps working in one giant coalition, will of course argue that this report should be made public. And we could potentially hear from potential targets of this investigation, folks who could see charges at the end of the day potentially come forward and try and stop, delay this report from being published or even to get their portions of the report scrubbed or redacted.
- [06:59]
Benjamin Wittes
All right, so you've put a lot out there for those who do not have a background on this aspect of Georgia State criminal procedure. Anna, can you give us just a kind of brief overview of what a special purpose grand jury is and how it interacts with the regular Georgia criminal process?
- [07:28]
Anna Bauer
Yeah, sure, Ben. Special purpose grand jury is an investigatory body. It's made up of. In this case, I believe that there were 23 jurors who are selected and a few alternates as well. And unlike a regular grand jury, the special purpose grand jury cannot issue indictments, but it can recommend indictments. It's also not limited by the normal time frame that a regular grand jury is, which is about two months. In this case, the grand jury, the special purpose grand jury, excuse me, has been sitting since May. So it hasn't been limited by that two month term of court that a regular grand jury usually, and it also is usually focusing on a specific topic. So that kind of allows the grand jurors to develop some expertise and really get into the details of the case in more depth than a regular grand jury usually would, which is dealing with a lot of different cases.
- [08:30]
Benjamin Wittes
All right, so I want to throw this question out to Anthony, but please, Anna and Tamar, weigh in as you have thoughts on it. We have a report and a hearing a couple weeks from now as to whether to make that public. There are presumably recommendations for prosecution or non prosecution or both in that report and a subsequent grand jury. A regular grand jury has to act on those before they become operative. So should we assume, Anthony, that District Attorney Fani Willis is going to wait before doing anything until that hearing and the material becomes public if it does? Or as Tamar describes, there's a lot of fights over the substance of that report and what parts of it get publicized? Or should we assume that indictments could come any day because Fani Willis does not have to wait for the decision about the opening for the public of that grand jury report before she proceeds to do whatever prosecutions she might want to Do?
- [09:51]
Anthony Michael Kreiss
Well, that's the hundred million dollar question of the day. What we don't know is whether or not this, this 24th hearing is really going to weigh one way or the other in terms of her strategy. I think it's very much in the cards that she could be pursuing something with the regular grand jury as we speak in anticipation of that report coming out. I think the other thing that has weighed on my mind and some other folks as well, is how detailed is the grand, special purpose grand jury's report. Because it very well may be the case that the report was, you know, kind of crafted with the anticipation that it would be made public or most of it would be made public, in which case perhaps the DA's interest is a little less, you know, against releasing it publicly. So I think there are a lot of variables here. I also think that there's nothing routine about this investigation and this process. And so it's really anybody's guess what will happen or how quickly or how slowly things will take take. But I do think that given the way Georgia's law, our code is written, the Judge McBurney really doesn't have a lot of discretion, I don't think, in terms of not releasing the report because Georgia law says that, you know, in a regular grand jury, if they have a general presentment that a majority of the grand jury wants to make public, that the judge presiding over that grand jury has a obligation to follow through on that recommendation. So there does seem to be some, at least to me, my initial reading of the statute and some of the other case law, I'm not sure that Judge McBurney is going to feel as if he doesn't have the discretion or that he has the discretion to not release this information. So that might also be putting a little bit more pressure on Fani Willis to do something before this comes out. But it's anybody's guess how to actually play out at the end of the day.
- [11:57]
Benjamin Wittes
Anna Tamar, do you have thoughts on this?
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Tamar Hallerman
It's worth noting that in this two page order we saw today from Judge McBurney, he said that a majority of the grand jurors had voted that they wanted this report to be made public. And he did indicate, just as Professor Christ said, that, you know, he probably does have an obligation to honor them. At the same time, he also raised the question of whether this final report qualifies as a special presentment under the law. And perhaps that is a loophole that could be argued in court. So I'll be very interested to see how the DA's office takes this. And as I game this out in my mind, kind of what possible position the DA may want to take on this. You know, on the one hand, a lot of the information that's been investigated has been made public one way or another through the Raffensperger tape, through the January 6th committee. So I truly wonder how much new stuff is in there. And perhaps she should know at this point what is in that report, what recommendations are being made, if she agrees with them. Maybe she does want this out there public so she can say, you know, I'm just following the advice of the good people of Fulton county after they spent eight months looking into this. On the other hand, I could see why the DA might want to keep this report under wraps, at least for a couple more months, say that the grand jurors do recommend indicting different people. The DA might want to buy herself some time to.her I's, cross her, t's get everything ready for a potential prosecution without having the public and the media's glaring spotlight on her.
- [13:36]
Benjamin Wittes
Anna, do you have thoughts?
- [13:37]
Anna Bauer
Yeah, I think that's right, Tamar. I also picked up on Judge MC In Judge McBurney's order, the fact that he mentioned not only whether this is a special presentment that the grand jury wants to issue and make public, but just whether it is a presentment at all. And I find that very interesting. Under Georgia law, it could be either considered a special presentment, which is typically considered statutorily a charging instrument, but it also could be considered a general presentment, which kind of at common law is like this more general report that a grand jury might issue to kind of summarize its duties that it undertook during its term and recommendations for future grand juries. I know that there's a lot of different ways that you could kind of think about whether it's a special presentment or a general presentment. But it was just interesting to see that McBurney is kind of questioning whether this is a presentment at all, because I think it's very clear that it is a presentment. And some of the case law that he cited, which I certainly want to take a closer look at. But a lot of it has to do with arguments in the grand jury context that a presentment should be redacted or expunged. And particularly some of them, some of these cases involve criticism that the grand jury's report makes about misconduct in public office or kind of non criminal wrongdoing. So I think that that's Interesting. And I wonder what's going on there. I'm not exactly sure, but we'll see.
- [15:35]
Benjamin Wittes
All right, so I want to bore in on this point a little bit because, Anna, you seem confident that this is a presentment. The judge is not. We haven't seen the text of anything. So, Anthony, can you walk us through what the issue is here that he's struggling with? That is, what would be the circumstances in which somebody would have a right to have some of this stuff suppressed, and what would be the circumstances in which you simply dump the document in the public domain?
- [16:09]
Anthony Michael Kreiss
Yeah, so I, I think from the onset, it's very important to, to know something about Judge McBurney for those of us who, who have followed his cases, both this case, but also some of the other high profile criminal trials that he's run. And he also oversaw the constitutional challenge to Georgia's six week abortion ban. Judge McBurney doesn't leave anything on, on the table. He is incredibly thorough. He asks questions that aren't even raised necessarily by the parties. He certainly doesn't leave any stone unturned. And I think that's what we're seeing here. I don't, I don't know if I would necessarily read it beyond anything beyond that. But at bottom, really the issue here is if it is a presentment, then again, he has a potentially mandatory obligation to follow the majority will of the grand jury and release the report. I think, of course, there are these other bigger questions about whether or not we want these reports to be out in the public eye if there is no follow up and due process and people just have these allegations that are left out there hanging over them and they aren't afforded the ability of a, of a full blown trial to right to prove their, you know, or show evidence contrary to what the special purpose grand jury on earth. And so I certainly think people do have some interest there. But as Tamar said, you know, so much of this information is already in the public eye. It's already well known. And so I'm not entirely certain how much any individual would get out of that. We also have these target letters that were sent earlier in 2022 to suggest or for the, that the Fulton County District Attorney was suggesting that a number of high profile individuals were likely targets of prosecution in this investigation. And so that's already overhanging them as well. So, you know, there's certainly a balance of harms that need to be considered, I think, by Judge McBurney about any potential, you know, reputational interests that are at stake here. But, you know, I think ultimately, you know, the whole purpose of a special purpose grand jury is to. To. To get at the heart of a matter that is deeply, you know, complex, that have major importance and great significance to the public, to the integrity of public office. Right. So that's why we use these for corruption cases and public corruption cases so often. And so I think there is a big interest that. That the public has in understanding what the special purpose grand jury, you know, eventually found. So I'm on the side of, you know, more transparency is better. I think that there are, you know, we'll see what they found. My inclination is that Judge McBurney will probably, probably release most of this to the public. But again, I think this case is kind of, you know, sui generis to all other cases that we follow often in Georgia or just anywhere. And it's really going to be hard to tell what exactly is going to happen here because the interests are so, you know, salient and so important. And again, I think this case is just so very unique to what we normally see. So it's anybody's guess what will happen at the end of the day.
- [19:38]
Benjamin Wittes
All right, so you all are being exceptionally responsible, which I feel an obligation to try to do something about. Tamar, I want to start with you. You said that a lot of the evidence has already come out, and I am actually skeptical of that because, among other reasons, because of your excellent podcast, which has convinced me over, it's got to be 15 episodes or so, that there's a huge amount we don't know. And a lot of witnesses have gone in there, and you and your co host have kind of scratched their heads about what they were asked about, what the universe of material that they would have knowledge about. And it seems to me, if you're. If you're contemplating as fani Willis, some kind of grand rico, Georgia RICO statute indictment involving potentially a lot of people, the details of the stuff we don't know is at least as important as the stuff that we do know. So tell me why I'm wrong and why. Why there's not that much more to learn here as a factual matter.
- [20:55]
Tamar Hallerman
Oh, Ben, I totally agree with you. And especially if she goes for a more sweeping RICO indictment. You're absolutely right. The details matter so much here. And really, there's this strategy question for the DA should she decide that she want to move forward with charges? She's, of course, hinted heavily that she is looking at RICO as a part of, and she could very well do that. And it kind of goes to show the breadth of people who she's brought in, from low level employees at the Secretary of State's office all the way up to a sitting US Senator and the former chief of staff at the White House. She could also choose a safer, narrower path for herself. And many legal experts I've talked to have advocated for this. She has the Raffensperger tape. That phone call from January 2, 2021, when the, when President Trump urged the Secretary of State to find him. Eleven thousand, seven hundred and eighty votes. Some folks think that alone is grounds for a slam dunk, you know, election fraud charge against the former president and just kind of go for that, go, go after the fake electors on something like forgery. And so I think there's a question of what the DA Wants to do there. Many of the folks she's talked to have spoken to the January Six Committee. I mean, Brad Raffensperger, BJ Pack, the former U.S. attorney in Atlanta, Ruby Freeman, the Fulton county election worker that said she was able to talk to folks who did not go before the January 6th committee, most notably Mark Meadows and Lindsey Graham. And there's Also folks the January 6th committee talked to who she wasn't able to get a hold of, most notably David Schaefer, the chairman of the Republican Party at Georgia, who, as court filings have shown us, has become very much a person of interest in this investigation. So I think there's plenty we can learn here. But in terms of maybe the broader contours, the January 6th committee especially, really helped bring a lot of that to light and really helped the D.A. i've spoken with Professor Kreiss about this, but the January 6th committee was able to shake loose some really important emails from John Eastman about what Trump's campaign team knew and when, as they signed documents under oath in Georgia lawsuits, things that could really help establish criminal intent for folks like President Trump here in Georgia. So I think they've been kind of operating on parallel tracks and they kind of help one another. But you're absolutely right, Ben. There's stuff in here that we're going to learn about for the very first time.
- [23:24]
Benjamin Wittes
So, Anna, if this were in the federal system, first of all, it wouldn't have. The whole investigation would have proceeded very differently. But we wouldn't be expecting a single report with a big bang, right? A kind of please indict the following people, Mr. Attorney General. Wouldn't happen. We would expect, you know, the low, lower grade people to be indicted first, maybe pressure put on them to flip on people above them and you kind of work your way up the chain. In this case, we seem to be expecting all of the answers in a kind of singular report. And I'm, I'm wondering, do you think we should be maybe considering that that's not what's going to happen? Maybe what's going to happen is, you know, hey, as a preliminary matter, you know, Madam District Attorney, the following people clearly violated the following statute. Maybe start with them. Is there, is there any chance in your mind that, that the report will actually reflect sort of prosecutorial priorities to not try to answer the top questions at first, but rather focus on a bunch of fake electors, you know, Rudy Giuliani, who's gotten a target letter, and that maybe we should be thinking hard about who has and who has not received a target letter.
- [24:56]
Anna Bauer
Yeah, it's a good question, Ben. My view is that we are going to see the big questions answered if we ever see this report in the coming months or even in the coming years. I certainly think that some of this litigation around whether or not the report will be published and to what extent it will become public could go on for quite a while. And I think that there's a good chance that we see some indictments before its publication. But whether or not that is the case, I think it's been clear that the district attorney has been very focused on the conduct of Donald Trump. There is the Raffensperger call. There is a lot of information that has already been made public that I think at least in my view, is at least arguable that there is plenty of evidence there to seek indictments at this stage. However, you're right that often there is this kind of strategy to target the low hanging fruit first and see if anyone will flip. There's been some reporting around that and about how the district attorney has not had a whole lot of success in potentially, you know, negotiating some plea deals with some of the fake electors that's been hinted at in some of the filings and in a battle with the attorneys who represent 11 of the so called fake electors. Maybe this is something that Tamar and Anthony want to speak more to, but my, my view is that probably we will see a lot of these big questions and the so called, you know, larger targets of the investigation actually potentially indicted or at least recommended for indictment in the report.
- [26:55]
Benjamin Wittes
What do you think, Anthony? Do you think there's, you know, a chance that we've all breathed too much into this report and that the coercive steps of the investigation may need still to take place before we get any kind of final Georgia resolution of this stuff.
- [27:18]
Anthony Michael Kreiss
Yeah, I think that's a very hard question to answer partially. I'm not certain and I don't think anybody is, you know, how much parallel activity the DA's office has undertaken while the grand jury has wrapped up their work. If I recall correctly, Fani Willis had said probably at some point in late November or early December last year that the special purpose grand jury was wrapping up their work fairly rapidly at that point. So they've had a, you know, they've had a good month and a half or so to maybe shake some things out of the bushes, you know, while the special purpose grand jury crossed their T's and dotted their I's. So that's also possible. I do agree, though, it's not clear to me that the report is going to be this kind of end all, be all smash hit, you know, that everybody's going to be reading. It may very well be a bare bones report that gives a pretty thin overview, not, you know, not insignificant or unimportant, but perhaps just kind of a thin overview of what the special purpose grand jury found. So I, I think the real, at least for me, the big question is what kind of prosecutorial strategy, if any, is Fani Willis going to pursue? As Tamar suggested earlier, this office, and Fani Willis in particular, is a big fan of RICO and the Georgia RICO laws. And I was very skeptical and one of those people who, you know, every time you hear RICO get thrown out there, I just cringe because it's almost never correct. And I'm not a criminal law person either, but I know that it's, it's a lot of, you know, people just think of RICO as being this kind of sexy thing that everybody wants to talk about and grab a hold of. But this office really does like that. And I do think there's some strategy, perhaps that might be different if that is the road this office is going to go down, rather than pick off a handful of statutory violations here or there, or bring just a kind of traditional conspiracy charge for conspiracy to commit, or conspiracy to solicit election fraud. So I, I think that there's a lot of moving variables here. There's a lot of factors that we just don't know. But that's why I think that this January 24th hearing is going to be so telling, because you will probably get a better idea of the flavor of what is coming down the road from the DA's office based on the kinds of arguments they put forward to Judge McBurney about what they want to do with this report or how much information there is even there that might be sensitive and require some form of redacting or some kind of, you know, equitable order from the judge. So that's really what I'm looking for is, is what the tenor of the conversation is on that, that hearing. Because I think a lot of these questions that are percolating now, the special purpose grand jury's work is wrapping up will be answered, or at least we'll have a perhaps a little better idea or some kind of, you know, reasonable basis for inference about what exactly is in the future. Here in Fulton county, this episode is
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Benjamin Wittes
You know, he's really committed to this
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- [38:33]
Benjamin Wittes
All right, so Tamar, I want to put myself in the shoes of Fani Willis here and your business far better positioned to do that than I am. If I were in her role right now, I would say, wow, between now and the 24th, there is going to be a full court press by the defense bar, by the conservative press, by Donald Trump against me. And it's all going to be designed to undermine this report before anybody sees it. But I have this other possible response, which is I can act on the recommendations of that special grand jury anytime I want. I can bring that report before a regular grand jury and ask for indictments. I can bring the transcripts of testimony before and I don't have to wait. That's just about whether the report's going to become public. I can bring whatever indictments I want to bring tomorrow. And so do you think we should be on the lookout for actions prior to the 24th, or do you think she is likely to defer to Judge McBurney's consideration of that? Just curious for you to put yourself in her shoes and game out how you would be thinking about this.
- [40:01]
Tamar Hallerman
Look, I think anything is possible and I've just learned to expect the unexpected with this investigation in particular. Now, the DA's office advises this grand jury, and so what's in this report should not be a surprise to them. They might not agree with everything that the grand jurors voted to do. And remember, for anything to end up in that final report, it has to be agreed upon by a majority of the grand jurors. So it could be very different from what the DA wants to do. And we don't know, as Professor Christ said, we don't know how detailed this report is going to be. Are they going to get into prosecutorial strategy here? You know, we've uncovered evidence that would get you to a RICO charge against these people, but we really think you should go for a more straightforward conspiracy to commit election fraud charge. I don't necessarily think so. This is a panel of laypeople. I don't expect most of them to be lawyers or super into strategy, although maybe they watch a lot of Law and Order at the same time. I would think that the DA would probably wait until McBurney's hearing on the 24th. They've been pretty deferential to him this entire time. And so I would think that they would wait for him. And my thought is that initially if the grand jury wants to make their report public and the DA was okay with that, I would think that Judge McBurney would sign off on that and there maybe wouldn't be a need for a hearing like this, I don't know. But then again, maybe the DA's office wants to get ahead of all of this and kind of go for the surprise and issue an indictment quickly to try and cut some deals. I'll be very interested to see. One area that I think is really ripe for deal cutting has to do with those alternative Republican electors in the November ish timeframe. If I'm getting my my timeline correctly, we saw an effort to break up the electors. Eleven of them have the same legal representation and they were attempting to kind of pick all of them off. So they each had different lawyers so that presumably they could Negotiate plea agreements with some of them, get the smaller fish in exchange for information on the big fish. Judge McBurney eventually said, you know, we can separate out David Schaefer, the chairman of the Georgia Republican Party, who, as we understand, had a bigger role in helping assemble this slate of fake electors. Potentially they're going to cut deals with some of these other electors in order to get more information on. On the chairman. We don't really know, but that's an area to watch for sure.
- [42:26]
Benjamin Wittes
Anna, what do you think? If you were advising Fani Willis, would you suggest move quickly, get ahead of this, or would you suggest, hey, it's already been 18 months, it's really two years since she announced the investigation. You know, take your time, deal with the publicity, let the report come out, or assuming it does, and let the public digest just how bad the facts are before you do anything. What would what do you think? Leave aside, what do you think she's going to do? What do you think the right approach is?
- [43:11]
Anna Bauer
Initially, when I was thinking about what I would do if I was Fanny Fani Willis, I thought that I would wait for the report to come out because I thought that it would be politically the move that she would make to show her county, to show anyone who's been watching this investigation that these grand jurors did recommend indictments, if that is indeed what they've done and that there is evidence to support it. I certainly have changed my mind about that in the past few hours as I've been thinking about it more. I think that there is a reason that secrecy is important or discretion is important in investigations. It often gives prosecutors an advantage to not have targets know what is going on in the investigation or what information they've uncovered. And granted, a lot of that information is already in the public sphere because of the January 6 report and a lot of the information that was uncovered during the congressional hearings. But at the same time, you know, this is a very different investigation with a different objective under different law. And the Fulton county special purpose grand jury heard from witnesses that the January 6 select committee was not able to hear from. And I think if I'm Fannie Willis, I probably don't want potential targets of the investigation having advanced notice that might be in that report. Again, as we've mentioned previously, it kind of depends on whether or not this report is just kind of a very thin, more general report or whether it's a kind of more, you know, thick account of the events and the evidence. We don't know that, but I think that I would move quickly if I'm Fani Willis at this point.
- [45:18]
Benjamin Wittes
So it seems like from talking to all of you, like, there's just a huge, huge number of variables here, which suggests to me that there isn't a particularly rich history of precedent to deal with. You know, in a lot of systems you can say, well, it'll likely be done X way because in past cases it always has been done X way. But here we seem to be assuming a lot of, a lot of degrees of freedom. Anthony, what, what do we know about the history of Georgia special purpose grand juries and how they have dealt with, not that there are situations like this, but how they have dealt with publicity questions as well as the speed at which indictments have followed in the past?
- [46:11]
Anthony Michael Kreiss
I mean, that's another open ended question. There just haven't been that many and there certainly haven't been any that have dealt with issues of this magnitude in terms of both complexity, importance, and I think, public awareness. So I have often used the term unchartered waters because there really is no precedent for this at all. So I don't know how quickly things might happen because there's not even. We don't have, I mean, I don't think we really have anything that we could call a body of precedential behavior. The only other thing I would actually want to add to kind of go back to a previous question, another factor here is I think, the political factor of the fact that the General assembly just convened today and the legislative session is always one that I think if you're a local official, you may not want to ruffle more feathers than you have to. And so you really want to make sure that everything you're doing is kind of battened down and, and done, you know, without, you know, or beyond reproach. And so I think there's another political factor here. And, and part of that is even heightened by the fact that one of the previous targets of the investigation is now the lieutenant governor of Georgia and, and the president of the Georgia state Senate. So there, there's a little bit of a, I think an additional political wrinkle here that won't influence her decision making for sure, but I certainly think it impacts the kind of approach that, that she might take. But yes, at the end of the day, the fact that these kinds of investigations are so rare, the few that I'm even aware of happening, for the most part, rural counties where there was some local corruption, they really haven't had, again, this kind of statewide magnitude and statewide importance as this particular special purpose grand jury's work has had.
- [48:12]
Benjamin Wittes
So interstate, not just statewide.
- [48:15]
Anthony Michael Kreiss
Yeah.
- [48:16]
Tamar Hallerman
A couple other wrinkles to throw into the decision making. First, both Fani Willis and Donald Trump will be on the ballot in 2024. And of course, this whole process should be devoid of politics, but of course, it's impossible to divorce the two. And it's something the DA has to be mindful of as she's moving forward with this. This. The Justice Department in Washington is, of course, very wary of doing anything close to elections. And if we have primaries starting to happen February, March of next year, I think the DA will have wanted to have put a lot of this behind her at this point. There had been rumblings in the past of launching a recall effort against the da. That hasn't really come to pass, as far as I'm aware of. But of course, she must be mindful of the potential of somebody putting up a primary challenge against her, someone who could say, hey, why have you devoted so much time, so many resources to an investigation like this, going after a former president when we still have all this violent crime in Atlanta, when there still is a giant backlog of COVID cases, so. Or, sorry, of legal delays as a result of the COVID pandemic. And so those are factors that are out there that could help drive decision making. There's also a statute of limitations on a lot of these crimes. And Anna and Professor Kreiss, you'll have to kind of jump in here and tell me what it is for a lot of these charges, but I'm thinking many of them are three, four years. And so if we're talking about things that happened in late 2020, early 2021, the DA's office has to be very mindful of that. As for precedent, special grand juries are super rare in Georgia, as everyone has mentioned, and there have only really been a couple in the last dozen or so years. But one of them that did happen in metro Atlanta, there was a special grand jury stood up in DeKalb county, which is right next to Fulton, that looked at contracts having to do with our Department of Watershed Management, and it was looking at potential corruption in that system. Well, the special grand jury ended up issuing a sweeping set of recommendations that named everyone from the CEO of the county on down, and the judge overseeing that grand jury actually ended up sitting on that report for a really long time. The foreman of the grand jury actually ended up suing the chief judge in order to get that report released. And it was something like seven or eight months later. So there is precedent of waiting a long time to get a report out, but also of, you know, seeing the light of day at the end.
- [50:52]
Benjamin Wittes
All right, so the next thing that we know is going to happen is this January 24th hearing. And, Tamar, all we know is on the agenda for that hearing is the question of the publication of the report, right?
- [51:12]
Tamar Hallerman
Yes, as far as I know.
- [51:14]
Benjamin Wittes
And so we really have zero roadmap to any other aspect of, I mean, within the range of. Of reasonable possibility. Is anything from indictments tomorrow to indictments never?
- [51:32]
Tamar Hallerman
Absolutely. And it makes it tough for someone like me who's been tracking this to kind of plan out my next couple weeks and months and year. We could see indictments tomorrow, as you said, or it could be completely quiet for a year, and we just have no clue.
- [51:50]
Benjamin Wittes
All right, so there's one area, and this is an area that you've covered especially richly in, in your podcast, where it seems to me there is a little bit more clarity than on the when question, which is the what question. As you alluded to earlier, there are ways to think about charges you might bring that are relatively narrow, from forgery matters to sort of garden variety kind of fraud stuff to a broader conspiracy to this RICO conspiracy kind of charge. If you were imagining the sort of minimalist version versus the maximalist version, what does the report look like under those circumstances? In other words, what's a reasonable range of expectation? And can we. Can we get on the what front a little bit better than from, you know, from tomorrow to never?
- [52:54]
Tamar Hallerman
Well, a lot of this we need to differentiate between what we might see in this report, which, as I mentioned before, is written by two dozen citizens of Fulton County. These could be bus drivers, teachers, nurses. These are not folks who are super up to date on how the legal system works versus what the DA ultimately decides to do with it. A lot of it might just be laying out in this report what they've uncovered. So here's what happened in the U.S. attorney's office in January 2020. Here's what happened in this effort to infiltrate the election data from Coffee County, Georgia, and then maybe a section on what to do. There aren't a whole lot of requirements about what needs to be in this report. So as we've talked about, we don't know if it'll be thick or thin. There was one recent special grand jury presentment that was only 24 pages. There was another, this DeKalb water contracts, one I mentioned that was something like 80. So obviously much more detail in the latter. But Ultimately, it'll be up to the DA to decide what to do with this evidence presented. And even the, you know, they've been sitting in on all of these sessions, these prosecutors, with all these folks who have been interviewed by the grand jury. So there could potentially be things that aren't necessarily brought up in the report that the DA's office pulls from in a potential indictment. If they wanted to go narrow, they could stick solely if they wanted to, this leaked phone conversation between Brad Raffensperger and Donald Trump, and then they could look at criminal solicitation to commit election fraud and kind of narrowly go that way. Rico, if you want this to stick in a court of law, you would need to paint a really broad narrative about a conspiracy that stretched over a long period of time, potentially part of a pattern that included multiple swing states. They would really have to go pretty big with it in order to get charges to stick. So there's a real strategy question. I don't know how much in this special presentment, the jurors will be helping with that or really clued into that. As I mentioned, it's not a work product of the DA's office. So it almost doesn't matter what the DA wants to do. They're going to present it in their own way.
- [55:06]
Benjamin Wittes
Yeah. So I want to follow up on that, because that never ceases to amaze me, this idea that this is actually written by the grand jurors. I have always thought of grand juries as, you know, they are a formal instrumentality of the court. Formally, it's, you know, 23 regular citizens, but in fact, the DA is sort of the legal advisor to it and does all the work. Anthony Anna, do Georgia special grand juries really write their own reports? And if so, is that a good idea?
- [55:44]
Anthony Michael Kreiss
Let me, I don't know what's so again, because they're so rare, you know, it's, we really don't know how much, you know or what the process is for writing it as to whether it's a good idea. You know, I've, I've had a lot of thought recently about this because I, I, I think, you know, when I teach about grand juries and, and I don't teach a lot of, I don't teach criminal law, but I do teach a little bit about the prosecution power in constitutional law and the purpose, the traditional purpose of the grand jury and the way that it's been framed. For a lot of the cases that I teach or the few that I teach, it's like the grand jury Is there to be the safeguard against governmental abuse and prosecutorial abuse? And it's there to serve this grand. Well, no pun intended, but it's there to serve this higher order, this higher purpose. And then we get the kind of traditional painting of the grand jury or a grand jury. As, you know, they'll indict a ham sandwich, right, because they just. They're just a mouthpiece.
- [56:50]
Benjamin Wittes
It's always a ham sandwich. It's never roast beef, never grilled cheese.
- [56:55]
Anthony Michael Kreiss
Yeah, maybe we should start switching it up, you know, but, you know, there. So there is maybe something virtuous about giving this awesome power, this responsibility to, you know, average citizens of Fulton county to say, you know, we think. You know, we think that there's something, you know, afoot here that was potentially unlawful. We want you to investigate it, and we want you to take the charge. And. And there are. There are some risks there, but there. There is something kind of virtuous about citizens taking the lead and trying to do right by. By the people of Georgia and the people of Fulton County. So maybe it'll be, you know, maybe we'll get this report and I'll change my tune and I'll say, oh, maybe this is a bad idea. But I think, in theory, there is something virtuous about putting this in the hands of everyday citizens, and I think that it potentially could reinforce the legitimacy of any prosecutions Fani Willis might bring, because, of course, there's going to be charges laid against her that these are partisanly motivated. She's a political actor. This is about political retribution. It's not about justice. But those charges are much easier to deflect if you can say, you know, this group of people who know better than almost anybody else what happened here in Fulton county, to the, you know, the best of their knowledge and their best of ability, the best of their ability to turn over this evidence. And they wrote this report, and they made these recommendations. I think there's something to be said about that. But again, I think because special purpose grand juries are so rarely used and because this one in particular is of such great magnitude and importance, maybe we'll feel differently afterwards. But I will reserve judgment on that until after the 24th.
- [58:55]
Benjamin Wittes
Anna, what do you think? Are you relieved at the possibility for democratic independence and belief in the purity of the grand jury system? Relieved at the possibility that this may have actually been written by grand jurors? Or do you recoil at that and say, if you're going to have a major report about the conduct of election meddling, in Fulton County, Georgia, in 2020. It should be written by professionals.
- [59:27]
Anna Bauer
I'm of two minds about it. I think, like Anthony is on one hand, I think that there is, as Anthony mentioned, there is this communicative or expressive value to a group of just regular citizens in Fulton county coming together to write this report. And it really goes back to some of the functions that grand juries originally had, you know, back in the 17, 1800s. So it's very interesting to me that this report could come out that is potentially, you know, written by the grand jurors themselves and kind of has this communicative way of kind of calling out misconduct or criminal wrongdoing. At the same time, I think we can't lose sight of the fact that what this report says will be the public's first kind of perception or potentially could be the public's first look at some of the evidence for an ongoing criminal investigation. Obviously, that depends on whether or not the report is made public and all of that, as we've mentioned previously. And I. And I think that there is some real harm that could be done if. If there's not that kind of, you know, legal expertise that is there. And that's not to say that these. That these jurors have not, you know, developed that expertise. They've been on this case for a long time. I would assume that they have a very solid grasp of. Of what the potential charges are and the elements of the crimes at this point. But it is a tough question because, you know, there's an ongoing criminal investigation here that could potentially lead to indictments and a trial. And it certainly is the case that whatever jury pool there will be for a potential trial, I would assume it would be very hard to find a juror who has not at least been aware of what comes out from this report. With all of that said, we don't know if the grand jurors are writing this report. We don't know the extent. I mean, I assume that they are, and it is certainly their choice to decide what to do. But we don't know the extent of the district attorney's involvement because special purpose grand juries are so rare in Georgia. Every special purpose grand jury that I have looked into and every report that I've read is very different. And the DA Is legally the grand jury's legal advisor. So I would be very surprised if the district attorney's office did not at least have a pretty heavy hand in advising the grand jury as it writes this report. So I think that summarizes my thinking on it at this time.
- [62:37]
Benjamin Wittes
All right, Tamar, wrap us up here. What will you be looking for? Given that you just said that, you know, indictments could happen as early as tomorrow or as late as never. What are you looking for over the next few days? What would you know between now and the 24th? What will you be reporting on when you call your sources? What will you be asking them about?
- [63:03]
Tamar Hallerman
Sure. I mean, the first thing is any peep that comes out of the DA's office, they have been declining to comment today. Folks are not answering their phones. I want to know what they're thinking at this point in the process, how closely they've looked at this special presentment. Do they have a strategy at this point? Are there indictments in the pipeline that they are hoping to bring in front of a regular grand jury? And short of that, how they. They might respond to a hearing like what's scheduled on the 24th? We should see arguments that are filed ahead of time with the court. So we'll. We'll get a little preview a couple days before the hearing. So does the DA want to keep this thing private? Will they show their cards at all about any potential charges? Do they agree with the grand jury at all? You know, I think an important part of this and, and Anna and Professor Kreis had kind of mentioned it, and I'll kind of summarize it as the jade reporter that I am, which is this special grand jury gives the DA political cover. If she wants made sense for her to ask for this special grand jury, because given how just nakedly political this issue is, she's a Democrat in a heavily Democratic county. Joe Biden won with 70% of the vote or something like that in 2020. Looking into pretty much exclusively Republicans and their conduct in 2020, it is so much easier for her if she agrees with whatever the special grand jury says, because then she can say, hey, it wasn't me. Driven by my political agenda, I'm following with what all the nurses and bus drivers and teachers on this special grand jury recommended. And if she breaks from that, she'll have to explain herself to the press and to the public, and she'll have to give a really good reason why. So I'll be looking for that. And I'll be very interested to see if any potential targets or folks who are worried that their good name could be further dragged in the mud in this report if they come forward and try and stop this in one way or another. One group we really have heard very little from throughout all of this Donald Trump's lawyers, he hired three attorneys here in Georgia, and we really haven't heard a peep from them publicly. No court filings or anything like that since they've been hired. Donald Trump himself has sent out a couple social media posts about racist, vicious prosecutors or talking about Fani Willis as this young and ambitious prosecutor in Atlanta. But he has held his fire a little bit. And so I'll be curious if Team Trump is tempted to start wading into this now or if they would wait for a potential indictment to come down before they really, you know, take their gloves off and start going for it.
- [65:49]
Benjamin Wittes
And do you read the their silence as tactical or as simply evidence that they have no idea what's going on any more than we do and therefore they're, you know, keeping their powder dry?
- [66:04]
Tamar Hallerman
I mean, a little bit of both, right? I mean, the thinking for a long time was that maybe the special grand jury would recommend charges for folks around Trump, but not Trump itself, because it's so hard to go after a former president because he, you know, he'll say things, but he'll never cross the line. So maybe Trump would be spared from being named in something like this. Now, legal sources of mine aren't so sure. Many think that there's enough out there to indict him if Fani Willis so chooses. But I think it's very much a strategic thing to not be talking and to wait and see what's going on at the same time. Donald Trump, as we have learned, is not one who likes to take advice. So if he feels compelled, he might be one to kind of step out and potentially in a truth social post or now on his new reinstated Twitter account, maybe we'll hear something from him.
- [66:56]
Benjamin Wittes
We are going to leave it there. Tamar Hallerman, Anna Bauer, Anthony Michael Kreiss, thank you all for joining us today.
- [67:06]
Tamar Hallerman
Thank you.
- [67:07]
Anthony Michael Kreiss
Thanks.
- [67:11]
Benjamin Wittes
The Lawfare podcast is produced in cooperation with with the Brookings Institution. And today it was produced in cooperation with Noam Osband of Goat Rodeo as well. Hey, folks, who else is going to bring you a podcast like today where we get this kind of group of people together to chew over the news in this kind of time frame? Nobody. And that's why you should be a material supporter of law fans. Go to patreon.com lawfare and become one today if you haven't done so already. The Lawfare podcast is edited by Jen Patya Howell. Our music is performed by Sophia Yan. And as always, thanks for listening.
- [68:09]
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