As an American citizen, I am gratified to hear that a Georgia special grand jury has recommended indictments against more than a dozen people for election fraud. But as a former prosecutor, I am mortified that a grand juror is talking about it publicly.
Even more alarming were some of the things Kohrs said about her own experience.
On Tuesday, Emily Kohrs, the foreperson of the special grand jury in Fulton County, went on a media tour of sorts, giving interviews to NBC News, The New York Times, the Atlanta Journal-Constitution and other news outlets, and she is apparently enjoying her moment in the spotlight. She revealed the names of witnesses who testified; Rudy Giuliani left her star-struck; Sen. Lindsey Graham, R-S.C., was “personable”; former White House chief of staff Mark Meadows “shared very little.” She told us that some witnesses were immunized. She confirmed that the jurors had listened to a recording of former President Donald Trump’s phone call with Georgia Secretary of State Brad Raffensperger and had discussed the slate of alternate electors. Although she did not reveal the names of any of the people the grand jury recommended indictments for, when she was asked whether Trump was one of them, she replied: “You’re not going to be shocked. It’s not rocket science.” Yikes.
Even more alarming were some of the things Kohrs said about her own experience. She said she swore in one witness while holding a Ninja Turtle ice pop she had received at the district attorney’s office ice cream party. A what?! Why on Earth would grand jurors be socializing with the prosecutors? A grand jury is an independent body, and prosecutors are trained to maintain a professional distance and avoid engaging in interactions that could be perceived as influencing their decisions.
Kohrs also revealed some other concerning facts. She reported that when witnesses invoked their Fifth Amendment right to refrain from answering questions on the basis that their answers might incriminate them, she could hear all of the other grand jurors writing furiously. This could indicate that jurors were improperly holding the assertion of a constitutional right against witnesses. She said another member of the grand jury brought a newspaper into the room every day and pointed out stories about their investigation, though she herself avoided news coverage to maintain an open mind.
I can only imagine the skyrocketing blood pressure of District Attorney Fani Willis, who, unlike the special grand jury, actually has the power to bring indictments and who has said her decision is “imminent.” A blabbing grand jury threatens to upend the whole enterprise. At some point, impropriety by a grand jury could be grounds for a claim of violation of the due process rights of the accused. And a successful claim could taint anything that occurred afterward, requiring dismissal of any indictments and a complete do-over, so long as the statute of limitations has not yet run.
This remains an unlikely scenario but one that should not be risked, especially when the stakes are so high. Already we are hearing rumblings from unhappy GOP witnesses — and their lawyers.
When I served as a federal prosecutor, everyone understood the rules. The grand jurors, like the prosecutor and the court reporter, were sworn to secrecy. Rule 6(e) of the Federal Rules of Criminal Procedure says they “must not disclose a matter occurring before a grand jury.” That language includes not only the decisions of the grand jury but also the identities of the witnesses who appear, the cases under consideration, the documents and other items produced as exhibits, the subjects of subpoenas and anything that occurs in the grand jury room. All of it is transcribed so a record exists for later scrutiny, without the need for grand jurors to report on what happened. While witnesses are not bound by the grand jury secrecy rules, grand jurors most definitely are.
The rule in Georgia appears to be somewhat more lax. It requires only that grand jurors protect the secrecy of “deliberations.” What’s more, the judge overseeing the investigation did not prohibit members of the special grand jury from talking to the media so long as they did not reveal their deliberations. Kohrs may have believed that as long as she did not name names she was in compliance. But acknowledging that the grand jury had recommended indictments against more than a dozen people sounds awfully close to revealing deliberations.
Already we are hearing rumblings from unhappy GOP witnesses — and their lawyers.
Grand jury secrecy protects the process and the people under investigation. Witnesses may testify in secret so they are not exposed to threats or intimidation. The topics of investigation are safeguarded so potential targets will not destroy evidence, tamper with witnesses or flee. Charges are not disclosed unless and until they are filed to avoid harming the reputation of people under investigation, because sometimes charges are declined.
Of course, this case is somewhat unusual because the investigation has been so public from the start. Willis herself has talked publicly about her investigation into Trump and his allies regarding interference in the Georgia election. While prosecutors normally refrain from even confirming or denying the very existence of an investigation, exceptions are permitted to help reassure the public. Even the tight-lipped U.S. Attorney General Merrick Garland has repeatedly held news conferences promising that the Justice Department “is committed to holding accountable all January 6th perpetrators, at any level, accountable under law.”
As a result, it is no secret that a grand jury has been investigating the Trump campaign and associates in Georgia. Under the law, Willis was required to ask the court to convene a special grand jury to hear a matter of the length and complexity this case would take. To obtain subpoenas for witnesses who live beyond the borders of Georgia, she was required to get court orders, revealing the names of the witnesses she was calling. Kohrs was merely repeating some of what was already known to the public. In addition, a layer of insulation exists in this case: Georgia law authorizes a special grand jury to only recommend indictments. Willis must now present the evidence that has been gathered to a regular grand jury with her own recommendations for indictments. This unusual structure may cleanse the case of any unintended Kohrs blowback.
Most grand jurors I have spoken to find the experience gratifying but taxing. Kohrs is certainly making the process sound more exciting.
Serving on a grand jury is difficult. Citizens must sacrifice an enormous amount of time and mental energy to listen to testimony, learn about laws without any legal training and spend months in a room with strangers trying to make sense of sometimes complex facts — all without telling anyone about their extraordinary work. They must make sometimes painful decisions about other people. Most grand jurors I have spoken to find the experience gratifying but taxing. Kohrs is certainly making the process sound more exciting. She is a walking PSA for fulfilling this specific civic duty, proclaiming it “one of the coolest things that’s ever happened to me.”
We thank her for her service. But the process is not over. And Willis needs to ensure that her prosecutors are treating the grand jury with arm’s-length professionalism.
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