The Week Ahead

February 26, 2023

We’re officially on Georgia-watch. There’s a new regular grand jury, the type that indicts cases, showing up to work in Fulton County this week. So it’s entirely possible that this could be the week to expect the world to turn upside down. There’s usually no advance warning to the public of a grand jury indictment, because of the secrecy that shrouds the process. Indictments only become public once the grand jury has voted to “true bill,” or vote to issue an indictment proposed by the district attorney. After voting, the grand jury “returns” the indictment to the judge in charge of the grand jury, and the clerk’s office adds it to the official docket for the case.

The first signal we’ll probably get—you’ll be in a crowded restaurant, or at work, or on a train, or in the gym, and suddenly everyone’s phone will start blowing up all at once. Reporters tend to stalk the clerk of court’s office in person and online when they know a big case is close. We’re in that sweet spot, although it’s important to keep in mind that we could remain there for awhile.

Of course, it’s not certain that anyone, let alone Donald Trump, will be indicted. But Fani Willis, the Fulton County district attorney, certainly seems to be giving off all the signals that she means business here. If she does indict, there are a number of different types of charges she could be considering under Georgia law.

• First up, election-related crimes: solicitation to commit election fraud, intentional interference with performance of election duties, interference with primaries and elections, and conspiracy to commit election fraud. Some, if not all, of these charges could turn out to be misdemeanors, not felonies, depending on how Willis charges and what evidence she has. The dividing line is the felonies are punishable by imprisonment for more than one year. These types of charges could involve both Trump’s bid to have Georgia Secretary of State Brad Raffensperger “find” him more votes and the fake electors scheme, with the critical issue being that Trump and any co-defendants intended to solicit, interfere, etc. with the election.

• Willis also has an array of general crimes, i.e. not election-specific, to consider: making false statements, improperly influencing witnesses, forgery, and general criminal solicitation.

• Georgia’s state RICO statute could also be charged: RICO stands for the Racketeer Influenced and Corrupt Organizations Act and originally referred to a federal law passed in 1970 to strengthen the tools and charges available to federal prosecutors for dealing with the unlawful activities of those engaged in organized crime—Mafia or other entities devoted to organized, ongoing, serious criminal conduct. A number of states have adopted “mini-RICO” acts, but Georgia’s is rather more maxi in scope, giving Georgia prosecutors broad options. To make out a RICO charge, Willis would have to show a pattern of misconduct and violations of two or more crimes from a long list of specified “underlying offenses,” including some of those mentioned above. RICO cases are complicated and can inject uncertainty on appeal following convictions, but Willis’s office has previously suggested, in a 2021 letter to Georgia Governor Brian Kemp, that racketeering charges were under investigation. Willis herself has prior successful experience with the statute and has hired at least one prosecutor with RICO expertise since taking office.

That’s what we’ll be on the lookout for in the week ahead and, perhaps, for a number of weeks, now that Willis has clarified that when she said charges were “imminent,” she meant it in the prosecutor sense, not a journalistic one. A prosecutor’s idea of “imminent” can allow room for last-minute kerfuffles with witnesses and evidence, additional questions from inquisitive grand juries that need to be satisfied, would-be defendants who want to cut pre-indictment deals, and all sorts of other things that can eat up additional time.

Over the weekend, there was lots of talk about whether the media appearances by investigative grand jury foreperson Emily Kohrs have given Trump yet another lucky break, dooming any prosecution. The answer is no.

First off, it’s important to consider how Trump or others might raise an argument about Kohrs. Much of what you’ve likely seen in the media for the past few days involves whether she violated any rules or laws when she spoke out. Judge Robert McBurney, who oversaw the grand jury, stepped forward to confirm he’d told grand jurors they could not publicly discuss their “deliberations”—their conversations when they were among themselves in the grand jury room—but that they could discuss their interactions with witnesses or prosecutors in limited ways. That information speaks to the issue of whether Kohrs herself could be in trouble, perhaps even find herself indicted for violating grand jury secrecy, not to how Trump and other defendants might use her public revelations to try to deflect the indictments against them. So while the answer to whether Kohrs is personally in trouble under Georgia law appears to be no, that’s not the question that will occupy Trump’s lawyers’ time if he’s charged.

The arguments we should expect to see them make will involve how Kohrs’s conduct unfairly prejudiced Trump’s chances at trial. His lawyers, if he’s indicted, will argue pretrial that the case should be dismissed and revisit the argument on appeal if there are convictions, arguing they should be reversed. But any argument they make about unfair publicity and prejudice will be much larger in scope than Kohrs’s public statements last week. Trump and his co-defendants’ lawyers would likely lay out what they perceive as an entire witch hunt’s worth of far more (in their view) egregious circumstances than an investigative grand jury foreperson talking out of school. Defense lawyers will argue that massive coverage of events means it’s impossible to get an unbiased jury, that any jury verdict against them is tainted by pretrial publicity, injecting unfairness into the trial and denying defendants due process. If there are indictments, we’ll see extensive motions in this regard. It’s undeniable that the facts in the case have been in broad public circulation. The events of Jan. 6 were televised, as was Trump’s subsequent impeachment and the House subcommittee hearings. There has been extensive coverage of the elections, their aftermath, and Trump’s role. So while his lawyers may flag what Kohrs did, it will be a small cog in a much larger list of grievances. Her actions are unlikely to be more prejudicial or influential with potential jury members than, say, a House hearing devoted to what Trump did in Georgia or the release of the audiotape of his call with Raffensperger.

Nor will Kohrs influence the decisions made by the grand jury Willis will go to to seek indictments. She spoke out only after the grand jury investigation was complete, and she will play no role in a decision about any indictments. You don’t love seeing it, but it’s not a case-ender. The grand jury Willis goes to for indictments will hear the evidence fresh and be asked to evaluate it for themselves. Prosecutors will be on high alert to avoid any possible prejudice, like the Teenage Mutant Ninja Turtle popsicle Kohrs said she still had in her hand from a grand jurors’ mingle with the DA’s office when she swore the next witness in. As distasteful as that is, it won’t taint a future indictment, and Willis should treat it as a wake-up call. The pretrial publicity came along with the investigation, and there’s nothing she can do about what’s already taken place. Her job will be to convince the court it won’t interfere with a fair trial.

Judges and juries deal with big cases where emotions run high all the time. And although the scale of publicity with the insurrection is exceptional, courts know how to deal with that too. Defendants don’t get a pass just because there’s been a lot of interest in their crimes. For instance, when Trump’s buddy and campaign chairman Paul Manafort was facing trial, he asked for a transfer from Northern Virginia, where he complained about the extensive publicity, to Roanoke, in Southwest Virginia, which coincidentally would have given him a strongly pro-Trump venue to select jurors in. We’ll see that same kind of strategic effort here too. Trump, if charged, will want to be tried in a conservative, rural Georgia county, perhaps one of the ones that elected Marjorie Taylor Greene, claiming publicity there was less intense than in Fulton County. But the judge denied a transfer in Manafort’s case, and it’s likely to be denied here as well for the simple reason that when there is so much pretrial publicity, there’s no reason to believe one particular county would have less of it than any others. The argument should rebound on any Fulton County defendants, as it did with Manafort. Here, with such widespread publicity, defendants would in essence be pleading with the court to send them to a more favorable venue for trial, and that’s not a right the law provides them with. The presumption favors holding trials in the venue they are charged in.

So the real issue will be seating a fair and impartial jury in Fulton County, where the crimes that would be charged in any indictments took place. And, in an odd way, Emily Kohrs ends up being proof that’s possible. Certainly there will be more jurors like her, someone who didn’t vote in 2020 and hadn’t heard the tape of Trump calling for Raffensperger to deliver the vote for him until she heard it in the grand jury chamber. It’s possible to find neutral jurors—not necessarily easy, and it can take time, but it’s quite possible. Some potential jurors, as remarkable as it may seem, will not have engaged with the facts and will hear them for the first time in court. Others will know some of the facts but will be willing to commit that they can set aside what they know to reach a decision based only on the evidence they hear in court.

In voir dire, potential jurors are examined by the judge and lawyers to determine whether they have any bias that would prevent them from giving the defendant(s) a fair trial. If they do, they can be excused by the judge “for cause.” Even if a juror says they can be fair, lawyers can still remove them from the jury so long as they have a legitimate, non-discriminatory reason for doing so (prosecutors can’t, for instance, remove all Black jurors to deny a Black defendant a jury of their peers). These additional juror “strikes” that are not for cause are called peremptory strikes. In Georgia, by statute, each side gets nine of them.

Picking a jury that will withstand scrutiny on appeal in this case will take time and care. And the appeal is the ballgame. Prosecutors have to be vigilant about ensuring nothing takes place during the trial phase of proceedings that could cause an appellate court to reverse any convictions. That means exercising care in jury selection and being concerned about getting a fair jury, not just one they believe will vote to convict, and continuing to take care at every following stage of the case.

Prosecutors have to be constantly alert to any possible error that could infect the proceedings. All it takes is one serious error that creeps in early on for convictions to be reversed down the road. That’s why prosecutors with the resources to do it will often put an appellate lawyer on a team from the time the case is indicted. The appellate lawyer’s job is to protect what the record on appeal will look like and make sure no reversible error occurs, diligently observing and ensuring prosecutors clean up any mistakes that are made.

We don’t yet know exactly what Willis’s team—if she indicts—will look like. But it would be a smart and good sign, especially after watching foreperson-gate for the past week, for her to put an appellate lawyer on her team. This could be the week in Georgia.

In other Trump-related news, we’re now waiting on a decision, which could come this week, from a panel of D.C. Circuit judges who will decide whether the Justice Department can have access to Pennsylvania Representative Scott Perry’s cellphone, which was seized pursuant to a search warrant. We learned Friday night, when she unsealed her opinion, that district judge Beryl Howell ruled DOJ was entitled to examine the phone’s contents. But the court of appeals put that on hold pending oral arguments, which were held partly in public, partly in private, last week. All told, DOJ has been prevented from accessing, for more than six months, 2,200 items on Perry’s phone. You’ll recall the culmination of his role in the Big Lie was connecting Trump with the DOJ environmental lawyer Jeff Clark, who wanted to be attorney general. It’s tough to understand why DOJ wouldn’t be entitled to all of the communications about that scenario, which falls outside of any legitimate idea of the scope of speech or debate privilege afforded to members of Congress who are fulfilling their obligations to the people who elected them to serve.

Judge Howell’s 50-plus-page opinion is a zinger (except for the redacted portions, including a lot of early footnotes, which we of course can’t see). She lays out a clear rationale for DOJ’s entitlement to significant portions of the phone’s contents—she ruled some items were legitimately privileged. If the three-judge panel, which consists of Judges Neomi Rao, Greg Katsas, and Karen Henderson, rejects DOJ’s bid to access the evidence, expect the case to go to the full court sitting en banc and on to the Supreme Court as well. We’ll be waiting to see if the panel can rule as promptly as the urgent issues here demand, especially in light of the earlier delay.

As soon as the panel rules, I’ll share my analysis of its decision with you. If you’d like to read Judge Howell’s opinion, you’ll find it here. Suffice it to say, she was not impressed by Perry’s argument that the speech or debate clause protection was so broad that his entire phone was off-limits. Her opinion is well reasoned and should be affirmed, although some observers of the public portion of the argument did not think the panel, which includes two Trump-appointed judges, Rao and Katsas, was leaning that way. Judge Howell cut to the chase, ruling that Perry’s argument would extend to members of Congress not just the constitutional privilege they are entitled to but one that would place them essentially above the law.

Although the House General Counsel’s office took Perry’s side in the back-and-forth over whether Howell’s opinion should be made public, she determined that “the government’s specific allegations about why Perry’s phone might contain evidence of a crime remain under seal.” That means there are still some very interesting shoes left to drop here.

It looks like we are in for quite a week.

We’re in this together,

Joyce