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Benjamin Wittes
Foreign.
Marissa Wong
I'm Marissa Wong, intern at Lawfare with an episode from the Lawfare archive for February 7, 2026 On January 28, the FBI raided an election office in Fulton County, Georgia and seized documents and ballots from the 2020 presidential election. The raid appears to be part of the Trump administration's larger effort to find evidence supporting the claim that the 2020 election was, quote, stolen from President Trump through voter fraud and unverified ballots. Fulton County, Georgia is also one of the jurisdictions where President Trump was indicted in 2023 following an eight month investigation into his attempts to overturn the election result. For today's archive, I chose an episode from January 25, 2023 in which Anna Bauer joined Benjamin Wittes to discuss Judge Robert McBurney's hearing on the release of the Fulton County Special Grand Jury's report on the 2020 election interference case against Donald Trump, including arguments made by the District Attorney and media organizations. Judge McBurney's reactions the future of the Special Grand Jury Report.
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Benjamin Wittes
This is The Lawfare Podcast January 25, 2022 Judge Robert McBurney of the Superior Court of Fulton county held a hearing on Tuesday to decide whether or not to release the Fulton County Special Grand Jury's report court on 2020 election interference in Georgia Our own Anna Bauer was in the room live blogging the matter, and I caught up with her from the courthouse right after the hearing to talk it through. Why did the District Attorney argue that the report should continue to be sealed for now what were the media organization's arguments and and which way was Judge McBurney leaning? Is the report going to become public, and if so, when? It's The Lawfare Podcast. January 25th Anna Bauer on Judge McBurney's deliberations. So, Anna, give us a little background to start with about the hearing that you just attended, where you are, and why this hearing took place.
Anna Bauer
Sure, Ben. So on January 9th, on the morning of January 9th, Judge Robert McBurney, who has been overseeing the special purpose grand jury investigation into 2020 election interference in the state of Georgia, issued an order announcing that the special purpose grand jury was now dissolved, that its work was complete, and that it had issued a report. And the grand jurors recommended that the report be published under a statutory provision called 1512 80, which is a provision that requires a judge to publish something called a general presentment of a grand jury if the grand jury recommends publication. And in McBurney's January 9th order order, he noted that there was an unresolved question of whether or not this report constitutes a presentment, because if it is a presentment, then he would be required under state law to publish the report. So he set this hearing for January 24, which is the hearing that I went to today, and he invited the district attorney to present argument on whether or not the report should be published or whether it should not be. And then he also invited any media organizations to intervene and provide their perspective as well. So today we heard argument both from the district attorney and from media interveners as well.
Benjamin Wittes
All right, so let's unpack this. So you have a special grand jury investigation, and this is, of course, the investigation of the 2020 election meddling in Georgia. You have a grand jury final report. And for those listeners who don't remember this, the grand jury only issues a report. It can recommend indictments, but it can't bring them. So the report presumably includes whatever recommendations the grand jury has made for indictments. Is that fair?
Anna Bauer
Yes, that's fair.
Benjamin Wittes
So if Fani Willis is going to indict Donald Trump, it probably is reflected somehow in that document.
Anna Bauer
Probably, though. I mean, I think that it's fair to say as well that it's within the scope of the district attorney's discretion to either seek indictments that are not included in that report, or she could choose a strategy that does not reflect the potential indictments that the grand jury did recommend. So, for example, if the grand jurors went with a number of indictments that, for example, reach RICO charges in Georgia, the district attorney might disagree and say, I want to go with something more narrow in scope. And. And that would be within her discretion. But for, for the most part, you know, if indictments are recommended in that report, I do think it's fair to say that that likely reflects at least some of the charging decisions that the district attorney could make.
Benjamin Wittes
All right, so high stakes case before Judge McBurney this morning, and it all comes down to. To, as best as I can tell, one or maybe two picayune points of Georgia criminal law, which is to say, is this document a general presentment and. Or is it a court document within the meaning of Rule 21 of the Georgia Rules of Criminal Procedure? Is that fair?
Anna Bauer
That's right. And I talk a little bit about this presentment argument in a piece that I wrote for lawfare, and anyone who's interested in the meanings of presentments. I suggest that you read that piece because it will be much more nuanced than the conversation that I'm sure that we'll have here, because presentments are actually kind of hard to talk about because it means a number of different things and has a specific meaning under Georgia law in particular. But I think the important thing here in that respect, Ben, that folks listening need to know, is that presentments in Georgia law have two different meanings. One is a general presentment, which basically is used kind of interchangeably with reports. And then the other type of presentment is something called a special presentment, which is kind of like a formal charging instrument, you know, kind of like an indictment that would be used to actually charge an individual with a crime, and that person can then be arraigned on the special presentment. But under Georgia law, there's now really not much distinction between special presentments and indictments. They're functionally the same thing. So if you hear those terms being thrown around, that's kind of the distinction there. And part of what the hearing came down to today was the difference between general and special presentments and then whether or not a report is different from either of those things. So it's all very confusing.
Benjamin Wittes
All right, so we're going to get to the picayune points of law momentarily, because nerding out on Georgia state criminal procedure law is what we founded lawfare to do lo those many years ago. But before we do that, let's deal with the news. It seems to me this hearing had two major pieces of news and maybe a third. The first of them is that Fani Willis said in open court that charging decisions were imminent. I don't Want to parse her use of the word imminent as opposed to coming soon. But when I hear the word imminent, I mean, don't release this today because I'm going to charge people the day after tomorrow or next week. How did you read her statement on the imminence of charging decisions?
Anna Bauer
Well, I do think that that was notable, but at the same time, there were statements that were made by one of the deputy district attorneys who made argument, Donald Wakeford, who also noted that the district attorney apparently has not had time to incorporate any of the report or to really review thoroughly the report to make a charging decision. I'm not sure how much of that is just lip service to the idea of wanting Judge McBurney to kind of put things on ice for a little while before the report is released. I find it quite hard to believe that the district attorney has not reviewed that report thoroughly, especially considering that the district attorney, as the legal advisor of the grand jury, likely was very aware throughout the drafting process what the grand jurors were thinking and writing. So, yeah, I mean, unfortunately, I don't have much of an answer for you, Ben, other than that, I don't know what imminent means, but it does seem to me, based on some of the context and implications in what was said, that it seems very, very, very likely that charging decisions are coming and that it will lead to criminal charges being brought.
Benjamin Wittes
I mean, one way to understand the district attorney's position in this hearing, which we should spell out, was that Judge McBurney should not release the report immediately. And we can get. We'll get into the details of that, is that they're almost ready to go, but not quite. And if he hits the publish button on that document, you know, it just creates concerns with whatever they do that there was somehow prejudice by the publication of the report. So if you can just hold him off by two weeks, the problem goes away or is at least ameliorated. The other way to think about it is, you know, maybe they are. They have a fair bit more work to do and they don't want to give tips and leads to people. They don't want the prejudice arguments. But, you know, imminent means kind of soon, but it doesn't mean in the colloquial sense of imminent. Like, you know, the finger is on the. The send button and it's coming down, but it just hasn't hit the button yet.
Anna Bauer
Right. And I don't think there's been some speculation about whether or not maybe presentation of evidence has already started before the regular grand juries that sit in Fulton County. As you said, Ben, earlier, the special grand jury can only issue a report, cannot issue indictments. And so what that means for this process is that Fani Willis must present evidence to a regular grand jury to secure indictments. There are two regular grand juries that sit in Fulton county, and this term of court, as I understand it, the days are Monday, Tuesday, and Thursday. Friday, they have two concurrent grand juries that kind of alternate during different days of the week. I've been watching the indictments coming out of those grand jury rooms each day, and it looks to me like the number of indictments pretty much track with just the normal run of the mill number of indictments that usually come out of the grand jury room. So I would think that if presentation of evidence has started, we would probably see a lower volume of indictments from at least one of those grand juries. So I'm pretty skeptical that. That she has already started presenting evidence, which means that we at least have, you know, a few days, if not weeks, before indictments would. Would be brought, because presenting evidence, I think, will take some time.
Benjamin Wittes
All right, so the second big piece of news which we've already alluded to, is that the district attorney opposed the release of the report. This sounded a little strange to me when I first heard it, but then kind of was like, well, of course they do. So first of all, the DA's position seems a little bit weird because they asked for the convening of this grand jury, knowing that all it can do is produce a report and that it's up to the grant that can then be published or requested to be published. So why convene a special grand jury if you don't want the report published in a timely fashion? Was kind of my first question.
Benjamin Wittes (Ad Segment)
But then secondly, sketch out for us.
Benjamin Wittes
The position that the DA's office took before Judge McBurney.
Anna Bauer
Right. Well. Well, I think, first of all, there. There's reasons why you would want a special grand jury other than just knowing that they are able to produce a report. Right, Because a special grand jury can sit for much longer than the two month term of court that a regular grand jury is kind of bound to. Those grand jurors are. Have become more familiar with the investigation, and you kind of don't have to bother with getting a regular grand jury bogged down in a very long, complex investigation. But besides that, it seems to me that the argument that the district attorney's office was making is that it's not that we don't want this report to ever come out, but it's that this is an ongoing criminal investigation. This is a special grand jury that was requested by the district attorney or the executive branch that was kind of used for this investigative criminal purpose. And so as a result, you know, one consideration that should be taken into account is the effect that the release of this report would have on the ongoing criminal investigation. And that effect, the district attorney argued, is that, you know, there could be potential prejudice to possible future defendants, and they could then in turn, use that, you know, as a way to potentially make venue transfer motions or kind of argue that their constitutional rights were in some way violated, and then that in turn could weaken the criminal investigation later down the road.
Benjamin Wittes
Okay, so the third piece of news, which is maybe a piece and a half and is a matter of interpretation. I'm curious whether you agree with my interpretation is that it sounded to me like Judge McBurney does not buy the idea that there is not an obligation to publish this document. He was very circumspect with what he said, but it felt to me like his body language was saying, I don't see how I get around ordering publication of this under the statute. What did you think of his posture in this hearing?
Anna Bauer
I think that's right. I think that it sounds to me like you and I had the same interpretation of McBurney's tone and body language and general demeanor. He seemed that he did not really buy the district Attorney's arguments. I do think he was sympathetic to their policy arguments. So the idea that this is an ongoing criminal investigation, that there's reason to kind of wait as a matter of policy, because you don't want to interfere with that investigation. But I think that McBurney's hands are a little bit tied here as a matter of law. And I think that he was right to be quite skeptical about out some of the arguments that were made about by the District Attorney's office, particularly on the question of whether or not this report constitutes a general presentment under the provision of Georgia law that would require publication, which is section 15, 1280.
Benjamin Wittes
Hey, folks, this is going to come.
Benjamin Wittes (Ad Segment)
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Benjamin Wittes
Let'S go into the merits of the argument. Let's bracket for now the media organization's arguments because you can't understand them before you go through the law. So Judge McBurney seemed to be operating on the assumption that there are kind of two ways that this gets released, right, or that he's bound to release it. One is, as you say, that if it's a general presentment and the other is if it's a court document. There's a presumption of release of public accessibility, although it can be overcome in circumstances. So let's talk about general presentments. How could a non indictment report from a special purpose grand jury be anything other than a general presentment?
Anna Bauer
It's a good question, Ben, because I really, I mean, I put a lot of thought into it and I do not know how looking at the statute and the case law, you really can distinguish a report from a general presentment. But if I had to give it my best shot at kind of summarizing what the district attorney's argument was, it's that this report has elements of being a general presentment. So that would include, you know, kind of the grand jury's findings and some of their maybe more critical remarks that they've made or something like that. I'm not entirely sure because the conversation was very, very vague and broad because there were concerns about, you know, revealing information about what could be or is in the grand jury's report. On the other hand, there seemed to be some argument that this kind of resembles a special presentment in that there could be accusations of criminal activity within the report and that that would kind of harken back to what presentments or special presentments used to be under Georgia law, which were, you know, the grand jurors themselves accusing someone as a of a crime. That then led the district attorney's office to say, well, this means that there are kind of hybrid elements of general presentment, special presentment, and then something else entirely. And so this report is kind of a weird third thing that doesn't fall under the statute of being a general presentment. And you heard McBurney make a joke About. So what is it? A hybrid presentment. So I don't think that that argument was particularly compelling to me. But, Ben, I'd be interested to hear if you found it at all. Compelling.
Benjamin Wittes
No, I mean, I think their argument basically is this document is a report. It's not either a special presentment or a general presentment, and it may contain both. Special presentments or general presentments or kind of elements of both. And so what the court should do is evaluate it functionally. And, boy, it would be really inconvenient for us if the court just ordered its publication, but it didn't seem to be able to cite any examples of a court saying the special grand jury has issued its report. We don't consider the report a general presentment, so we're not going to release it. So I think my best guess is that they're stalling for time, and they figure if they can get Judge McBurney to spend a week writing a. An opinion, and then, as he suggested, you know, sort of push the. The. He said he wasn't going to just do anything precipitously that causes the report to dump in public. So if they. He spends some time writing an opinion and then he says, I'm ordering the report released at X and such a day on X and such a time, and gives everybody a little bit of grace, period, then that will give them some time to, you know, finish up their business. But I don't see how a grand jury report is meaningfully distinguishable from a general presentment. Not that I've studied Georgia law on general presentments as you have, but I thought the district attorney's arguments, which they have not put in writing, it was an oral there. They presented this position for the first time today in open court, I thought was a little bit bizarre, honestly.
Anna Bauer
Right. And you have to wonder how much of. I mean, the fact that there were no filing. I mean, I know that this is state court, and so sometimes you do have instances where you don't make a filing before and you just go in and you're making just oral argument and representations. But it is quite unusual, in my view, that the district attorney's office did not make any filings ahead of time. We also heard Donald Wakeford make several suggestions to Judge McBurney that the district Attorney's office be given time to provide written briefing. So I do wonder if there is something to this idea that there's a kind of stalling for time or buying time element to all of it, particularly.
Benjamin Wittes
If you combine it with the DA's comment that decisions are imminent. Right. So, you know, maybe the internal discussion at the DA's office is, gosh, we need two weeks. Can you. But can you buy us two weeks? Wakeman well, I can try, you know. And so she goes in there and says, we need time. Please don't release this. And he makes a kind of treat the special presentment language and the general presentment language and the report language as creating a kind of mudd. And so evaluate it functionally and see what you can do. And the hope is you suck up a couple of weeks, right?
Anna Bauer
I think that's right.
Benjamin Wittes
All right, so let's talk about the media organization's position, which was very similar to the view that you articulated in your piece, which is sure looks like a special presentment. And there's a mandatory reporting obligation in the presence of of a grand jury's request for a special presentment. Who were the media organizations and what did they argue today?
Anna Bauer
Right. The media organizations included a wide swath of various media organizations. It included the Atlanta Journal Constitution, the New York Times, the Wall Street Journal, pretty much all of the large media news organizations that you can think of. Cbs, I believe, cnn. I won't spend time listing all of them. But the arguments boiled down to two things. The first is the arguments that you and I have been talking about throughout this conversation, Ben, about a general presentment and reports under section 15, 1280. Basically, the media organizations took the position that we did, which is that there's really no reason to think that Georgia law distinguish between reports and general presentments. And for that reason, the section 15, 1280 requires publication of this report. But there also was a second argument that they made about a superior court rule called Rule 21, which basically provides that there is a presumption of public access to court records unless, you know, some exception by law or under the rule otherwise provides. And so the media organizations argued that this is indeed a court record and that it should be afforded this presumption of public access. And there was a lot of emphasis on the kind of strong public interest arguments that should be made in terms of the public, you know, having a right to see what this grand jury found out and what they recommended.
Benjamin Wittes
So as I read, Judge McBurney, he was, as you said earlier, sympathetic as a policy matter to the idea that, you know, the DA has, you know, important equities in the secrecy with respect to an ongoing investigation, but pretty skeptical that you could treat this either as not a court record. It is, after all, a grand jury report. Although they did say that the only copy of it was in possession of the DA So maybe you could argue that it was a court record once, but it's now a d. A record. That said, I think he seemed pretty skeptical of that. He also, however, seemed to. You think he might have some latitude to delay or redact. The statute does command its publication, but doesn't say its publication has to be immediate on the grand jury's request. So where do you think he's heading on this? Is it a kind of like, I'm going to order that it be released six months from now. That'll give you time to finish up. Is it. I'm going to order it be released today, but well, accept redaction, you know, proposed redactions, or is it, you know, some combination of a time delay and a redaction process?
Anna Bauer
Well, first, I think that the redaction question is an important one that was not really covered all that much in the hearing, which I found interesting. But there's a lot of case law on this about the authority of the judge to be able to expunge or redact kind of extraneous information that's included in a report by a grand jury or information that is kind of unnecessary because it is embarrassing or criticizes public officials and that kind of thing. The hearing didn't really get into a lot of that case law, but I would not be surprised if McBurney chooses to kind of use that power to redact and expunge and really examines the content of the report to do that. But in terms of the timing, I don't think it's going to be six months. If there's something that I do know about Judge McBurney from being in his courtroom quite a lot in recent months, it's that he feels very strongly about public access. He, more than pretty much any state court judge that I've ever been in a hearing with, is very, very concerned about, you know, whether or not his live stream is working, whether or not people have access to the courtroom. He kind of always makes that a priority at the beginning of each hearing. And so I my inclination just based off of that as well, which, I mean, isn't really anything other than just like, you know, my instinct, I think that he would choose a relatively short period of time. I think that even though he is inclined maybe to be sympathetic to the district attorney's position, I think that he would give her a relatively short period of time if he is going to hold off on publication. So potentially, you know, a matter of weeks, and he might see that as a reasonable amount of time for the district attorney to make a charging decision.
Benjamin Wittes
So if you are Fani Willis today, less than an hour after the hearing, it seems to me you have a pretty substantial fire lit under your butt, which is to say you've heard from him the same basic skepticism that you and I both heard. You've heard from him. No indication that he's sympathetic to the idea that he can just, you know, deep six the report until you're done. And so you have to operate on the assumption that you have a very limited window of time in which you're guaranteed secrecy.
Benjamin Wittes (Ad Segment)
Right.
Benjamin Wittes
Don't you have to assume he's going to order it released quickly?
Anna Bauer
Right. I think you do have to assume that. In terms of timing, I do think that she wants to act quickly. I will say that there's been some reporting that she potentially has other considerations about something that's called a speedy trial demand deadline. And I won't get into it too much, but basically, Georgia has a statutory deadline for speedy trial demand. So once you're indicted, basically, if you make a speedy trial demand, then you have to be tried either within the term of court that you are indicted or the next term after that. So basically, that gives the district attorney roughly four months in a typical situation, to indict someone and then bring them to trial if they make a speedy trial demand. So there's been some speculation that maybe she would need to wait until the beginning of March when the new term of court starts, so that she has as much time between the beginning of the term of court and then the next term of court if a speedy trial demand is brought. I will say that there is an order in Fulton county because of the backlog of COVID cases. That means that basically those deadlines are not applicable right now. So I don't think that that will be a consideration. I do not see what would be stopping the district attorney from bringing evidence to a regular grand jury, you know, this week or next week or the week after. But I certainly think that because of this hearing today and where McBurney seemed to be leaning, there is more pressure than ever to make a decision very quickly and to present evidence very quickly, because if she's betting on that report becoming public and doesn't, you know, want it to be public before she presents evidence and brings indictments, then she's going to have to get moving.
Benjamin Wittes
Finally, the president's lawyers made a statement yesterday which I thought was interesting. It may had some factual claims about his interactions with this special purpose grand jury. So what did the president's lawyers say and how did you read it?
Anna Bauer
Right. The president's lawyers basically said that they would not be participating in any of the arguments before Judge McBurney today on, you know, whether or not the report should be released and if it is released in what form. They said that former President Trump has not been asked to appear voluntarily before the special purpose grand jury and that he was never subpoenaed to appear. What do I make of it? I think it's quite interesting that former President Trump was never asked to appear voluntarily, considering some of the language in certain cases in Georgia about special purpose grand juries that have to do with kind of the due process protection afforded to individuals who are named in, in a grand jury report. But at the same time, I, I mean, I think that probably what the calculation there is, that if he's asked to voluntarily appear, then he would say no, and if he is subpoenaed, then it would lead to a very long and drawn out court battle. But I still, I, I do think it's a potential misstep to not at least ask, ask for voluntary appearance because it, it at least gives the impression of some kind of due process or opportunity to be heard. But I'd be interested to hear your take on it, Ben.
Benjamin Wittes
No, I agree with you. I think it's a, well, if you're planning to bring a case against him, it is, I think, actually unfair not to give him an opportunity to present whatever he wants to present to a grand jury before you indict him. I, I, you know, obviously there are circumstances in which grand juries don't behave that way, and some of them are legitimate. But I think it's always best practice if you can invite somebody to ask questions, answer questions before the grand jury to do it. Trump's lawyers interpreted this for public purposes anyway as a sign that he's not suspected of anything and that they've cleared him. I don't interpret it that way. I interpret it much closer to the way that you just articulated, which is that it was a decision based on the difficulty of getting him there if you subpoena him and the likelihood of his agreeing voluntarily. But I do think it's a misstep. And, and I think it'll be the first, you know, the first item in the president's, former president's press release if she goes ahead with a case against him that, you know, a grand jury that's never heard from him, never invited him to testify has brought a case against him. I think it's an unfortunate error if she is, in fact planning to bring a case against Trump. So, Anna, one more thing before we wrap the Donald Trump was not the only person who did not make a submission before the court on the question of publication. In fact, nobody other than the media did. And that includes all of the many witnesses whose conduct may be at issue, specifically discussed, specifically criticized, whose indictments might be specifically recommended by the special purpose grand jury. Not one of them made a submission to the court. Now, do you read this as they weren't invited by Judge McBurney to do so, or is there some other reason, to your mind, that, that, you know, basically we had a, had a court proceeding and nobody came Right.
Anna Bauer
Well, first, it is right that targets in the investigation actually were not specifically invited to make argument in Judge McBurney's January 9th order. If you read that order closely, he invites argument from the district attorney and any consolidated media interveners. He does not say targets of the investigation or potential named individuals are also invited to make filings or to provide their perspectives. So it could be that that was interpreted as, you know, we're not invited. I think that maybe the more likely reason is that these individuals didn't have an opportunity to read the report and so they were unable to really make substantive argument or claims about what specifically should be redacted or expunged. And I think that probably if they do know that there's some kind of damning information that they've said in the grand jury room or that might have been uncovered, you know, you don't want to reveal that by arguing for it to be redacted in the report. So I think that probably it comes down to just the lack of information on the part of potential targets because they didn't have the opportunity to review that report and don't know what's in it. But yeah, I mean, I really don't know in the end what exactly to make of it, but it was interesting that no potential targets made made arguments. What do you make of it? Ben?
Benjamin Wittes
I'm really not sure. I guess my gut is consistent with your second theory, which is that people don't really know what's in it and they don't want to draw attention to their own misconduct by saying, hey, there's going to be negative stuff about me in the report, please don't publish it, which is how any, you know, any Mark Meadows filing would come off. Right. And so I wonder if it's just, hey, if we're quiet, maybe we get lucky and it's all about Donald Trump. If we're loud, we just draw attention to the fact that we had a very difficult interaction with the grand jury.
Anna Bauer
Right.
Benjamin Wittes
So what happens next? Do we just sit back and wait for it? Seems to me the next move is in Fani Willis hands.
Anna Bauer
The ball is in Vonnie Willis's court. I We don't know what happens next. It could be days, it could be weeks, it could be months until we hear something. But we do know that Judge McBurney says that he will circle back and ask the participants in today's hearing if he has any additional questions or if there's any additional written filings that need to be made. So we might see some movement there on the public docket. But in terms of actually making charging decisions and bringing those charges and presenting evidence before a regular grand jury, it's pretty shrouded in secrecy, so only time will tell.
Benjamin Wittes
We are going to leave it there. Anna Bauer, thank you so much for joining us today.
Anna Bauer
Thanks Ben.
Benjamin Wittes
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Originally aired: January 25, 2023
Host: Benjamin Wittes
Guest: Anna Bower, Lawfare reporter
Summary by: [Your AI Summarizer]
This episode centers on Judge Robert McBurney’s hearing regarding whether to release the Fulton County Special Grand Jury’s report on alleged 2020 election interference in Georgia—particularly as it relates to former President Trump. Lawfare’s Anna Bower, who attended the hearing, breaks down the arguments presented by both the District Attorney’s office and media organizations, explores the legal ambiguities, and provides insight into Judge McBurney’s approach.
“In McBurney’s January 9th order... he noted that there was an unresolved question of whether or not this report constitutes a presentment, because if it is a presentment, then he would be required under state law to publish the report.” – Anna Bower (03:59)
“Presentments in Georgia law have two different meanings... part of what the hearing came down to today was the difference between general and special presentments and then whether or not a report is different from either of those things.” – Anna Bower (07:57)
“When I hear the word imminent, I mean, don’t release this today because I’m going to charge people the day after tomorrow or next week. How did you read her statement on the imminence of charging decisions?” – Benjamin Wittes (09:35)
“It’s not that we don’t want this report to ever come out, but it’s that this is an ongoing criminal investigation… there could be potential prejudice to possible future defendants…” – Anna Bower (15:42)
“He seemed that he did not really buy the District Attorney's arguments... I think that McBurney’s hands are a little bit tied here as a matter of law.” – Anna Bower (18:14)
“Basically, the media organizations took the position... there’s really no reason to think that Georgia law distinguish between reports and general presentments.” – Anna Bower (30:23)
“If there’s something that I do know about Judge McBurney... he feels very strongly about public access... my inclination... is that he would choose a relatively short period of time.” – Anna Bower (33:43)
On the DA’s request for secrecy:
“The argument that the district attorney's office was making is that it's not that we don't want this report to ever come out but... there could be potential prejudice to possible future defendants...” – Anna Bower (15:42)
On Judge McBurney’s likely direction:
“He seemed that he did not really buy the District Attorney's arguments... I think that McBurney’s hands are a little bit tied here as a matter of law.” – Anna Bower (18:14)
On the hybrid nature of the report:
“You heard McBurney make a joke about... 'So what is it? A hybrid presentment?'” – Anna Bower (24:10)
On DA strategy:
“You have to wonder how much of... is just lip service to the idea of wanting Judge McBurney to kind of put things on ice for a little while before the report is released.” – Anna Bower (10:32)
On the absence of target submissions:
“I think that probably it comes down to just the lack of information on the part of potential targets because they didn't have the opportunity to review that report and don't know what's in it.” – Anna Bower (43:10)
The episode delivers a nuanced view into not just the courtroom arguments but the strategic interplay between the DA, media, and the judge. With public release of the special grand jury report looking likely—at least after a short delay—pressure mounts on DA Fani Willis to act decisively, and questions linger regarding due process for potential defendants.
Listen to the episode or read Anna Bower’s in-depth coverage at lawfaremedia.org.