The Lawfare Podcast: Anna Bower on Judge McBurney’s Deliberations

Originally aired: January 25, 2023
Host: Benjamin Wittes
Guest: Anna Bower, Lawfare reporter
Summary by: [Your AI Summarizer]

Episode Overview

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.

Key Discussion Points & Insights

1. Background and Context

• The Special Grand Jury: Convened to investigate alleged 2020 election interference in Georgia, notably involving Donald Trump.
• The Report: The jury has concluded its work and submitted a report, recommending its publication.
• The Hearing: Judge McBurney called a hearing (01/24/2023) to determine if the report qualifies as a “general presentment” under Georgia law, which would mandate publication.

“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)

2. What is a Presentment? (Georgia Law Specifics)

• General vs Special Presentment:
  • General presentment: Often used interchangeably with “report;” traditionally must be published if the grand jury requests.
  • Special presentment: More closely aligned with an indictment—a formal charging instrument.
• Ambiguity: The current report seems to straddle both categories, which forms the crux of the legal argument.

“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)

3. Major News from the Hearing

A. Imminent Charging Decisions

• District Attorney Fani Willis stated in open court that charging decisions were “imminent.” The precise meaning of “imminent” remains ambiguous.

“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)

• Anna notes this could be strategic, suggesting the DA is stalling for time to avoid prejudicing charges with a public report.

B. DA’s Position: Opposing Immediate Publication

• The DA argues for delaying publication to avoid prejudicing potential defendants and harming the ongoing investigation. The office raised concerns about future motions for venue changes and constitutional claims if details are published prematurely.

“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)

C. Judge McBurney’s Skepticism Toward the DA’s Arguments

• Both Anna and Ben interpret the judge’s tone and demeanor as unsympathetic to the DA’s legal arguments for withholding the report. However, he is sympathetic to their policy concerns.

“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)

4. Legal Mechanics & Media’s Arguments

A. Statutory and Case Law Analysis

• Judge McBurney identifies two legal routes for release:
  1. General Presentment Statute (15-12-80): If it is a general presentment, release is mandatory.
  2. Court Document – Rule 21: Presumption of public access to court records unless specific exceptions apply.

B. Media Organizations’ Arguments

• The media coalition (Atlanta Journal-Constitution, NYT, WSJ, CBS, CNN, etc.) argues the report is a general presentment; publication is thus mandatory, and public interest in the case is paramount. They also invoke Rule 21 to strengthen the presumption of public access.

“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)

5. Redaction and Timing Possibilities

• Redaction Not Heavily Explored: Despite its legal precedent, redaction wasn’t deeply addressed in the hearing, though it may be an option Judge McBurney pursues.
• Timing: Anna anticipates Judge McBurney may allow only a short delay for the DA to act, aligning with his reputation for prioritizing public access.

“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)

6. Implications for DA Fani Willis

• The judge’s posture increases the pressure on the DA to act swiftly if secrecy is a concern, especially regarding charging decisions.
• Speculation about “speedy trial” deadlines is allayed due to COVID backlog orders suspending such deadlines.

7. Trump’s Legal Team and Target Response

• Trump’s lawyers declined to participate in the publication hearing, stating he was neither asked to appear nor subpoenaed by the grand jury.
• Anna and Ben agree this could be a misstep for the DA if indictments are planned.
• Notably, no potential targets, including Trump or other witnesses, made submissions to the court regarding release or redaction, likely due to uncertainty about the report’s contents.

Notable Quotes & Memorable Moments

• 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)

Timestamps for Key Segments

• Background on the Hearing: 03:59–07:57
• What is a Presentment? 07:57–09:35
• DA: Charging Decisions "Imminent": 09:35–14:48
• DA’s Opposition to Immediate Publication: 14:48–17:33
• Judge’s Interrogation of Legal Arguments: 17:33–19:19
• Deep Dive: Legal Mechanics & Media Positions: 23:14–32:13
• Redaction & Timing Scenarios: 33:43–35:53
• Potential Implications for DA: 35:53–38:50
• Trump’s Legal Team & Lack of Target Submissions: 38:50–44:48
• What Happens Next?: 45:31–46:20

Conclusion

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.