ATLANTA — A judge is set to hear arguments Tuesday on whether to release a report by a special grand jury tasked with investigating whether then-President Donald Trump and his allies broke any laws as they sought to overturn his narrow 2020 election loss in Georgia.
Fulton County Superior Court Judge Robert McBurney will hear arguments from the district attorney’s office, news outlets and potentially other parties before making a decision on the release of the report. The special grand jury, whose work was overseen by McBurney, recommended that the report be made public.
The report is expected to include recommendations for Fulton County District Attorney Fani Willis on possible criminal prosecution, though it’s unclear just how specific those recommendations will be. The special grand jury did not have the power to issue indictments, and it will ultimately be up to Willis to decide whether to seek indictments from a regular grand jury.
If McBurney decides to disseminate the report, he must also determine whether any parts of it should be redacted and whether the report should be made public now or later. It’s unclear how quickly he will rule.
The investigation is one of several that threatens potential legal consequences for the former president as he seeks reelection in 2024. Over a period of roughly seven months, the special grand jury heard from dozens of witnesses, including high-profile Trump allies, including attorney Rudy Giuliani and Sen. Lindsey Graham of South Carolina, and high-ranking Georgia officials, such as Secretary of State Brad Raffensperger and Gov. Brian Kemp.
Willis began investigating shortly after a recording of a January 2021 phone call between Trump and Raffensperger became public. In that call, the president suggested that the state’s top elections official, a fellow Republican, could “find” the votes needed to overturn his loss to Democrat Joe Biden.
“I just want to find 11,780 votes, which is one more than we have,” Trump had said. “Because we won the state.”
A coalition of news organizations, including The Associated Press, argued in favor of the report’s release in full, saying in a filing Monday that the document “is a court record subject to a presumption of openness” under state court rules and the state and federal constitutions. The media group said that the public interest in the report is “extraordinary” and that there “are no countervailing interests sufficient to overcome the presumption.”
Willis had not filed a brief by Monday outlining whether the report should be released.
Trump’s legal team in Georgia said in a statement that they do not plan to be present or to participate in the hearing.
“To date, we have never been a part of this process,” Drew Findling, Marissa Goldberg and Jennifer Little wrote, noting that the former president was never subpoenaed or asked to come in voluntarily as part of the investigation.
“Therefore, we can assume that the grand jury did their job and looked at the facts and the law, as we have, and concluded there were no violations of the law by President Trump,” they wrote.
The order granting Willis’ request for a special grand jury authorized the panel to “make recommendations concerning criminal prosecution as it shall see fit.”
A grand jury handbook produced by the Prosecuting Attorneys’ Council of Georgia says courts have repeatedly held that a grand jury “cannot include, in a report or general presentment, comments that charge or accuse identifiable person(s) of misconduct.” That can only be done in a charging document, like an indictment, the handbook says.
“I don’t think you can accuse anybody specifically of committing a crime, so it’s going to have to be a general recommendation” on whether the district attorney should continue to pursue the investigation, Prosecuting Attorneys’ Council executive director Pete Skandalakis said of the report.
If the special grand jury did recommend that specific people be charged, Skandalakis said he believes that would have to be redacted before the report can be released.
While the special grand jury’s work took place in secret, as required by law, related public court filings provided a glimpse of investigative threads that were being pursued. Those included:
— Phone calls by Trump and others to Georgia officials in the wake of the 2020 election.
— A group of 16 Georgia Republicans who signed a certificate in December 2020 falsely stating that Trump had won the state and that they were the state’s “duly elected and qualified” electors.
— False allegations of election fraud made during meetings of state legislators at the Georgia Capitol in December 2020.
— The copying of data and software from election equipment in rural Coffee County by a computer forensics team hired by Trump allies.
— Alleged attempts to pressure Fulton County elections worker Ruby Freeman into falsely confessing to election fraud.
— The abrupt resignation of the U.S. attorney in Atlanta in January 2021.