It was fitting that Fulton Superior Court Judge Robert McBurney was on the bench when the massive criminal indictment of former President Donald Trump, and a cast of 18 others, was returned Monday night.
In fact, for the past year, the running joke at the courthouse has been, “Aren’t there any other judges in the county?”
There are, in fact, 20 Superior Court judges but McBurney seems to continually draw the short straw.
“He’s caught every sticky case in Fulton County,” said attorney Lester Tate. “I think there are (judges) who shy away from high-profile cases. But he’s not afraid and is willing to step up.”
McBurney presided over the almost eight-month-long legal sideshow that was Fulton’s special purpose grand jury, the panel tasked with investigating whether Trump and his cronies tried to illegally overturn the 2020 election.
The special purpose grand jury, which is kind of a legal oddity baked into Georgia law, is a fact-finding panel but can’t make criminal indictments. The case then was sent to a different criminal grand jury. And who was the judge who oversaw the seating of that grand jury in July? McBurney.
When a grand jury’s indictments come, they are presented to a presiding judge, a duty that is a rotating round robin that Fulton judges get about every 20 weeks.
This week in the barrel? McBurney, of course.
Things have been interesting for the Harvard-educated lawyer who has been a judge for 11 years.
Credit: Arvin Temkar/AJC
Credit: Arvin Temkar/AJC
Trump’s attorneys wanted him bounced from the case, alleging he’s somewhat of a loose cannon. A couple of weeks ago, McBurney fired back with an order that basically said, “Nah.”
In his order denying Trump’s legal team’s motion, McBurney — who is not afraid of writing some spicy opinions — trotted out the Brothers Grimm to make his point: “For some, being the subject of a criminal investigation can, a la Rumpelstiltskin, be turned into golden political capital, making it seem more providential than problematic.”
His reference to the Rumpelstiltskin, the gnome who could spin straw into gold, came on the heels of reports that Trump’s political action committee, Save America, spent $40 million on legal fees to defend the former president and his merry band of henchmen. Also, Trump continually improves his stature with the Republican base the more trouble he attracts.
McBurney has also been in the thick of it in the past year in other locally giant cases.
Last fall, McBurney, a Fulton County Superior Court judge, sat in judgment of someone higher up the judicial food chain. Christian Coomer, a state appeals court judge, is accused of fleecing a client years ago when he was a mere lawyer/legislator.
The quasi-trial was held by a three-member Judicial Qualifications Commission (JQC) hearing panel — which McBurney chaired — and it voted to strip Coomer of his robe. Coomer was the first state appellate court judge to stand trial for alleged ethics violations. The case is still being appealed and the state Supreme Court is set to release its opinion Wednesday, according to the court’s website.
The week after the Coomer hearing, McBurney returned to his day job to hear arguments from abortion rights supporters who want him to block Georgia’s new restrictive abortion law. The state asked him to block the hearing until after next month’s election.
McBurney waved off those concerns, held the short bench trial in late October and then stopped enforcement of Georgia’s abortion ban. The state Supreme Court quickly put at least a temporary hold on his ruling, putting the law back into effect. The justices heard arguments in the case in March. We are still awaiting a ruling on that.
Credit: TNS
Credit: TNS
Then, in November, McBurney refused to open the jail door for Tex McIver, who sought bond after his murder conviction in the killing of his wife was overturned. Tex is the clueless, connected Buckhead lawyer who shot his wife to death in the family SUV. The state Supreme Court said Fulton prosecutors served up a case with “weak” evidence, although the justices said it was fortified by McBurney allowing in evidence he shouldn’t have.
Nonetheless, McBurney denied McIver bond, claiming the 79-year-old might vanish if given the chance. Tex’s retrial is scheduled for October.
Because of the mix of high-profile cases, McBurney has received great renown. In an interview last year, he waved off contentions concerning his appetite for such matters. His handling of the Trump case, he told me, was “purely random.”
Fulton’s 20 Superior Court judges all dropped their names in a hat to determine who’d oversee this blockbuster. McBurney’s name got pulled.
“Call it good luck, call it bad,” he said. “It was chance and not at all me raising my hand.”
He is aware of the “microscope” attached to the case, making him more apt “to double-check things.”
“If there’s a misfire, someone’s going to pounce on it,” he said. “It’s not so much I worry someone will say ‘McBurney is an idiot,” as they might say, ‘This isn’t being run in a way where they are taking it seriously.’ And we are taking it seriously.”
The notoriety is new. “The scope of recognition in the past was being named in the office newsletter,” he said last year. Now, his parents call to say, “Rachel Maddow mentioned your name.”
The rawboned McBurney, an Oakland, California native, is a photojournalist’s dream. His arms flap around to make points while his thick black eyebrows pop up and down.
His oratory, and writing skills, ensure hearings in his court and his rulings won’t be boring.
McBurney largely ruled in favor of District Attorney Fani Willis during her investigation of Republicans in the Trump case. But then she hosted a fundraiser for Democrat Charlie Bailey, running for lieutenant governor against GOP candidate Burt Jones, one of the fake Electoral College electors she was investigating. McBurney called it a “What are you thinking? moment” and pulled Jones from the case to prevent any perceived conflict of interest.
Credit: Arvin Temkar/AJC
Credit: Arvin Temkar/AJC
Earlier, he suffered through the legal gobbledygook served up in an election lawsuit by former U.S. Sen. David Perdue before tossing the case. He called it “speculation, conjecture, and paranoia. . . fodder for talk shows.”
McBurney rose quickly in the Fulton DA’s office before jumping to the U.S. Attorney’s office where he handled public corruption cases and a high-profile terrorism prosecution.
In 2012, he told the governor’s office he’d like to be a Fulton judge. David Nahmias, the former U.S. Attorney, kind of thought he was nuts.
“Our reaction was why would you leave the federal prosecutor’s office to go to Fulton with huge caseloads?” said Nahmias. “It can be a difficult place to be a judge.”
McBurney loved the federal gig but after 10 years of prosecuting cases, he figured the next 10 would be more of the same.
He likes the black robes. He’s been Fulton’s chief judge and has served on the Repeat Offender Commission, the panel trying to solve the perpetual revolving door plaguing Fulton’s criminal justice system. A 2019 review of judges found McBurney to be the Fulton judge most likely to toss a repeat offender back in the slammer.
On top of all his other duties, McBurney was one of the judges running Fulton’s accountability court, which tries to get alternatives to incarceration for drug users. As to whether he still has a prosecutor’s heart, he said he uses jail as a “last resort” when his other judicial tools don’t work.
Sometimes, you must use the hammer.
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