Opinion: Special grand jury report should be public

The scene in the courtroom just before noon was busy but muted.

About 40 or so people, almost all journalists, chatted. Some set up their cameras and recording devices; a few photographers perched themselves in the jury box.

They were preparing for a hearing on one of the most anticipated decisions in one of the biggest cases ever to land in Fulton County Superior Court.

Judge Robert McBurney was about to hold oral arguments about the rare process of a special grand jury’s report. Special grand juries and the reports they write don’t come along often.

A special grand jury meeting for eight months to investigate whether a former president and his supporters meddled in an election has never happened before.

The exact focus of the hearing: should the special grand jury’s written report become public?

The Atlanta Journal-Constitution supports making the report public. Our position on almost all legal proceedings: government and courts should operate in the most open fashion possible, to protect the public’s interest and to preserve trust in our legal system.

Credit: Miguel Martinez

Credit: Miguel Martinez

The 23 grand jurors heard from 75 witnesses, many of them reluctant and considered “targets” of the investigation. One of the many things they focused on: the phone calls Donald Trump made to senior officials in Georgia – including the governor – as Trump and his supporters tried to overturn the election. (We’ve heard lots about the call to Secretary of State Brad Raffensperger. We know almost nothing about Trump’s call to Gov. Kemp. Neither of those two are targets, but other Georgia elected officials are.)

The grand jury report likely includes specific recommendations from grand jurors to Fulton County District Attorney Fani Willis on whether individuals should be prosecuted.

Whether or not to make the report public invites arguments from three points-of-view.

First, Willis and her team of attorneys want the report to remain confidential until they decide whether and whom to charge with what crimes.

Second, people targeted in the investigation and mentioned in the report, would want it to remain sealed. The document wouldn’t involve formal charges, and therefore it’s wrong to make it public, the argument goes. Interestingly, no attorneys from the targets were in court Wednesday to argue against the report becoming public, even though they would have been welcome.

The journalists, acting on behalf of the public, want to preserve the important principle of court transparency and oppose sealing of government records except in extreme situations like the privacy of a child or the safety of a witness. The coalition position was presented by the AJC’s longtime attorney, Tom Clyde of Kilpatrick Townsend & Stockton. Clyde noted that the grand jurors had asked that the report be released to the public.

Among the journalists covering the hearing was the AJC’s reporter Tamar Hallerman and photojournalist Miguel Martinez. Reporter Bill Rankin was also covering it remotely. Hallerman and Rankin have also been producing podcast episodes on the special grand jury, which you can find at ajc.com/breakdown.

Credit: Bill Rankin

McBurney came to his post at 11:55 a.m., about five minutes ahead of schedule and after his bailiff asked everyone to find their seats.

The judge acknowledged that there were still a few technical items to be set up, as he was clearly aware that the hearing would be broadcast live around the country.

McBurney has become Atlanta’s version of King Solomon, finding himself presiding over numerous high-profile and complex cases. They’ve included, besides the Trump special grand jury, the Tex McIver murder case, the challenge to Georgia’s 2019 abortion law and the bond dispute involving the Gulch redevelopment.

As the hearing began, he invited questions and asked many of the attorneys, probing each argument that they, or anyone, might make in a matter-of-fact and informal style. He sprinkled in a few one-liners and humorous examples, even naming Sesame Street’s Oscar the Grouch to make a point. But always brought things back to Georgia law and the Constitution.

At one point, he noted that the grand jurors only gave an oath to keep their deliberations with one another confidential. Given the limits on the oath, he asked the attorneys whether there was anything in the law to stop members of the special grand jury from talking about the report now that their proceedings are over.

Willis made news in the hearing by saying that her decisions on indictments is “imminent.”

It’s a difficult issue for Willis; releasing the report before she makes decisions of whether and whom to charge would complicate things for her and would likely cause people who have been targeted in the investigation to complain of unfairness.

We respect that position, but we believe her team’s arguments aren’t enough to overcome the legal and constitutional principles of openness in court proceedings. We want the report released as soon as possible.

But we aren’t holding our breath. McBurney thanked everyone before he concluded the 90-minute hearing. He told the lawyers they should anticipate him contacting them with more questions.

He said he’d alert everyone when his ruling was coming and not surprise them. And that he would give everyone a chance to respond before he released the report, if he decided it should be released.

That’s a nice way of saying he would give the people who disagree with his decision a chance to appeal. And you can count on it.