It’s the question that’s been looming since it convened in May 2022 and after it disbanded last month: Would the special purpose grand jury investigating possible criminal meddling with the 2020 presidential election recommend former President Donald Trump be indicted?
Such a development would be unprecedented. Throughout U.S. history, no sitting or former U.S. president has been charged with a crime. To complicate matters even more, Trump has declared he is again running for the nation’s highest office.
Five pages released on Thursday from the grand jury’s final report offered few clues. The excerpts provided no names or proposed charges. Yet jurors wrote that they had provided “recommendations on indictments and relevant statutes,” which is as clear an indication yet that criminal charges were recommended. But for whom?
About two-thirds of the final report remain shielded from public view and it is in that section where more specifics about recommended indictments are included — such as whether Trump should be charged.
But some legal experts say a recent court order strongly suggests Trump is in the crosshairs. They are seizing upon a sentence in which Fulton County Superior Court Judge Robert McBurney explained why he had decided to seal — at least for now — portions of the final report out of concerns of “fundamental fairness” to those who are named.
McBurney, who oversaw the special grand jury, said there was “limited due process for those who might now be named as indictment-worthy.”
Credit: Miguel Martinez
Credit: Miguel Martinez
McBurney described the special grand jury’s investigation as an “entirely appropriate” but “one-sided exploration” because defense attorneys had to stay outside the room and could not advocate on their clients’ behalf. Targets of the probe also could not call their own witnesses who might rebut the state’s case and they had no ability to present mitigating evidence on their behalf, the judge noted.
At the very least, witnesses identified as targets and who appeared before the special grand jury were given the right to be heard, he said. But for anyone named in the final report “who was not afforded the opportunity to appear before the grand jury, none of those due process rights were satisfied,” McBurney wrote.
“The only person that could possibly be is Trump, which I believe means the grand jury recommended him for indictment,” said New York attorney Nick Akerman, who is closely following the Fulton investigation.
In a statement released last month, Trump attorneys Drew Findling, Marissa Goldberg and Jennifer Little said the special grand jury neither subpoenaed nor asked the former president to appear and testify voluntarily.
Just hours after parts of the final report were released, Trump posted on his social media network Truth Social, “Thank you to the Special Grand Jury in the Great State of Georgia for your Patriotism & Courage. Total exoneration. The USA is very proud of you!!!”
But whether the special grand jury exonerated Trump remains to be seen.
Akerman, a former Watergate prosecutor, recommended looking at McBurney’s order in the context of possible criminal acts investigated by the special grand jury. There is the Jan. 2, 2021, recorded phone call during which Trump urges Georgia Secretary of State Brad Raffensperger to “find” the nearly 12,000 votes to reverse his narrow defeat in the state. A key person on the Raffensperger phone call was chief of staff Mark Meadows and he appeared before the grand jury, Akerman noted.
A central person who helped develop the plan for an “alternate” slate of GOP electors was Trump attorney John Eastman, who also appeared before the grand jury. As did Trump attorney Rudy Giuliani, who made false accusations before state legislative committees, Akerman said, concluding Trump had to be the person McBurney was referring to.
Legal experts nationwide have pored over and dissected McBurney’s eight-page order. They acknowledge their conclusions are speculative because only parts of the report have been made public. But McBurney’s reference to anyone who did not appear before the special grand jury certainly caught their attention.
“It’s very likely a reference to Trump, because we know that Trump was not afforded that opportunity because his lawyers said so,” said attorney Norm Eisen, who co-authored a Brookings Institute report on the Fulton investigation.
“Trump’s risk of prosecution was already substantial even before this order,” added Eisen, who advised House Democrats during their first effort to impeach Trump. “But reading the tea leaves now that the judge’s opinion has been published makes that criminal exposure go up even more.”
Neither Trump’s Georgia attorneys nor a spokesman for Fulton County District Attorney Fani Willis responded to a request for comment for this story.
Georgia State University constitutional law professor Anthony Michael Kreis compared McBurney’s language to “a wink and a nod.”
“It’s a gesture to the idea that the main person here who very well might be accused of something was the least represented in both terms of testimony and other forms of being able to be heard,” he said. “And so it suggests to me that there’s a high probability, given that verbiage, that Donald Trump is among those who are expressly referenced for potentially committing crimes.”
Kreis noted there are others who did not appear before the special grand jury and could be among those to whom McBurney was referring.
Fulton prosecutors sought testimony from Dallas-based lawyer and podcaster Jacki Pick, but she fought off her summons before the Texas Court of Criminal Appeals. Pick, who has been identified as a target of the investigation, testified at a Georgia legislative hearing in December 2020 and presented selected portions of security video footage taken election night at State Farm Arena, according to court filings.
An Illinois police chaplain also avoided having to testify when his lawyer convinced a judge to reject his out-of-state summons. Rev. Stephen Cliffgard Lee was allegedly at the center of the effort to pressure Fulton poll worker Ruby Freeman to falsely admit to committing election fraud in late 2020 and early 2021, according to court filings.
“If there were people who were not present but relevant, but not likely to be recommended for prosecution, then there would be no real interest in singling out that category of people,” Kreis said of McBurney’s order.
Because the special grand jury could not issue indictments, only recommendations, the decision to seek formal charges lies solely with Willis.
