ATLANTA – Fulton County District Attorney Fani Willis is pursuing charges against roughly half of the people recommended to her by a special grand jury tasked with investigating efforts to overturn Georgia's 2020 presidential election.
The decision to seek charges against 19 people, as opposed to the 39 suggested to her, was likely a combination of factors, from constitutional protections to streamlining her case against other defendants.
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Ultimately, Willis decided against indicting Sen. Lindsey Graham of South Carolina; two former senators from Georgia, Kelly Loeffler and David Perdue; and former Trump national security adviser Michael Flynn, even as she pursued charges against former President Donald Trump, former New York Mayor Rudy Giuliani and Trump White House chief of staff Mark Meadows.
Here are some of the takeaways from the long-awaited report:
Why the report was released 9 months after it was finished
The special grand jury that spent seven months hearing evidence in the case voted to recommend that its report be published. Under Georgia law, the judge is then obligated to follow that recommendation.
But at a hearing in January, Willis asked Fulton County Superior Court Judge Robert McBurney to keep the full report under wraps for the time being, saying her charging decisions in the case were “imminent.” A lawyer for a coalition of news outlets, including The Associated Press, argued for its immediate release, noting the high public interest in the case.
McBurney decided in February to issue a partial release of the report, which included the introduction and conclusion, as well as a section in which the grand jurors expressed concerns that some witnesses may have lied under oath. In keeping the charging recommendations hidden, McBurney said some of those people may not have had the opportunity to appear before the panel, and those who did appear did not have the right to have their lawyers present or to offer any rebuttal.
McBurney released the full, unredacted report about 3 1/2 weeks after the indictment was returned.
Discrepancy between recommendations and charges
The stakes were high for Willis, an elected Democrat taking on some of the most powerful Republican politicians in the country. Her investigation was criticized by Trump and his Republican allies, who accused her of weaponizing the legal system for political gain. Meanwhile, critics of the former president were relying on her not to botch the case.
But the members of the special grand jury, operating in secrecy behind closed doors, didn't have to contend with those pressures. They had no specific criminal law training and ultimately don't have to prove the charges they recommended.
Asked why Willis may have chosen not to try to indict many of the people voted on by the special grand jury, Anthony Michael Kreis, a law professor at Georgia State University who has closely followed the case, said that, especially given Graham’s legal challenge over his possible protection under the “speech or debate” clause when called to testify before the special grand jury, the prosecutor may have wanted to avoid another protracted legal battle.
He surmised Perdue and Loeffler would also argue their participation had taken place in their official roles as federal officials.
Kreis also noted that Graham might well have been successful in an argument that a case against him be moved to federal court, which is something many of the indicted defendants are pursuing.
“That would just be an overreach, no matter what,” he said. “There just wasn’t enough evidence of criminality and stuff that fell outside the scope of his responsibilities as a senator.”
Recommended charges include vote breakdowns
Instructions for special grand juries are very broad, so the panel had a lot of discretion in how it structured its report.
The report includes a breakdown of the number of “yea” and “nay” votes, as well as abstentions, for each count for which the special grand jurors recommended charges.
On all the charges that were recommended against Trump, there was an overwhelming consensus of between 17 and 21 votes that he should be charged and only one “nay” vote each time.
The vote totals for recommending charges against Graham, Perdue and Loeffler were not as convincing. Special grand jurors voted against indicting most of the fake electors.
While juror vote tallies are important to obtain an indictment from a regular grand jury or a conviction at trial, the special grand jurors weren’t required to include them at all. And the special grand jury report contained vote totals only for charges that the panel ultimately recommended, not any that the panel rejected.
The report includes footnotes “where a juror requested the opportunity to clarify their vote for any reason.” For example, one juror thought there should be further investigation for one charge, and two believed the fake electors “should not be indicted for doing what they were misled to understand as their civic duty.”
One who voted against including Perdue and Loeffler in a racketeering charge believed that their post-election statements “while pandering to their political base, do not give rise to their being guilty of a criminal conspiracy.”
Kreis said Friday that Willis may have used some of the vote breakdowns to weigh whether she could ultimately successfully bring a case against the people being considered.
“If you have a jury and a group of folks who have pored over evidence for eight months and there’s still a 50-50 divide or a two-thirds divide ... I don’t think that’s something that you’d look at and say, ‘We have a high probability of a conviction there,’” he said.
Defiance is the prevailing reaction among those named in report
The high-profile Republican politicians and officials named in the special grand jury report said Friday that they had done nothing wrong and insisted they were acting within the scope of their responsibilities.
Graham, who was chair of the Senate Judiciary Committee at the time, called Georgia Secretary of State Brad Raffensperger in the days after the election and asked him whether he had the power to reject certain absentee ballots.
The senator said Friday that it was his duty to investigate claims of voter fraud, which were largely debunked. “I had questions, as did many others, about how the mail ballot process worked in Georgia and other locations. I did my due diligence."
Loeffler, who cast doubt on the validity of the 2020 election before being voted out of office in January 2021, said Friday that she would “make no apologies for serving my state by giving voice to millions of Americans who felt disenfranchised in 2020.”
Representatives for Perdue did not immediately respond to messages seeking comment Friday.
An attorney for Flynn, who called for rerunning elections in swing states that Trump had lost, criticized the investigation as a “baseless witch hunt” and politically motivated sham meant to interfere with Trump's chances of returning to the White House in 2024.
Lawyer Lin Wood, who held meetings at his house where possible ways to influence the results in Georgia and elsewhere after the election were discussed, noted that he was never ultimately charged in the case.
“The grand jurors who actually sat and heard the case with the power to indict did not indict me,” he said.
“I didn’t do anything wrong,” he added. “I was not part of a national legal effort to overturn the 2020 election.”
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Kinnard reported from Columbia, South Carolina.
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Meg Kinnard can be reached at http://twitter.com/MegKinnardAP