(Photo
by
Win
McNamee/Getty
Images)
This
afternoon
in
Georgia,
Fulton
County
District
Attorney
Fani
Willis
made
the
case
that
the
special
purpose
grand
jury
report
on
interference
with
the
2020
presidential
election
should
remain
sealed
pending
her
“imminent”
charging
decision.
First
Amendment
lawyer
Tom
Clyde,
representing
the
media
intervenors,
argued
that
there’s
a
strong
presumption
in
favor
of
public
judicial
proceedings,
and
pointed
to
a
provision
of
a
Georgia
statute
which
appears
to
make
publication
non-discretionary
for
the
court.
And
supervising
Judge
Robert
McBurney
seemed
no
less
confused
at
the
conclusion
of
the
hearing
than
when
he
took
the
bench
at
noon.
The
only
thing
that
is
clear
is
that
Georgia’s
special
purpose
grand
jury
law
is
a
hot
mess.
Check
out
Lawfare
for
Anna
Bower’s
terrific
post
breaking
down
the
relevant
statute
and
precedents.
The
DA
convened
the
jurors
in
May,
and
successfully
litigated
subpoenas
to
force
testimony
by
many
of
the
front
row
players
in
Donald
Trump’s
scheme
to
steal
the
state’s
16
electoral
votes
from
President
Joe
Biden.
Senator
Lindsey
Graham
and
former
White
House
chief
of
staff
Mark
Meadows
were
ordered
to
testify,
as
were
attorneys
Rudy
Giuliani,
Jenna
Ellis,
Cleta
Mitchell,
Georgia
Secretary
of
State
Brad
Raffensperger,
and
several
participants
in
the
fake
electors
plot.
But
because
the
special
purpose
grand
jury
cannot
present
an
indictment,
Texas
courts
reasoned
that
they
were
not
criminal
subpoenas
and
refused
to
enforce
them
for
attorneys
Sidney
Powell
and
Jacki
Pick.
The
grand
jury
can
only
produce
a
report,
which
it
did
in
early
January,
voting
to
make
its
findings
public.
Judge
McBurney
dissolved
the
body
in
a
January
9
order
in
which
he
laid
out
the
question
of
what
to
do
next,
and
set
the
matter
for
hearing
today:
Remaining
is
the
question
of
publication
of
the
final
report.’
The
special
purpose
grand
jury
certified
that
it
voted
to
recommend
that
its
report
be
published
pursuant
to
O.C.G.A.
15-12-80.
That
provision
is
mandatory:
“the
judge
shall
order
the
publication
as
recommended.”
And
that
provision
appears
to
apply
to
the
work
of
special
purpose
grand
juries.
O.C.G.A.
15-12-102.
Unresolved
is
the
question
of
whether
the
special
purpose
grand
jury’s
final
report
constitutes
presentment.
Unsurprisingly,
the
prosecutors
would
prefer
not
to
have
the
report
published
while
they’re
still
trying
to
decide
whom,
if
anyone,
to
indict.
DA
Willis
herself
made
a
brief
opening
statement
in
which
she
promised
that
charging
decisions
were
“imminent.”
Her
deputy
Donald
Wakeford
followed
up
with
an
extensive
argument
about
protecting
the
witnesses
and
the
prosecutorial
process.
To
which
the
court
responded
that
the
congressional
hearings
about
the
January
6
Capitol
Riot
and
issuance
of
its
final
report
don’t
seem
to
have
hampered
the
Justice
Department’s
investigation.
(Attorney
General
Garland
might
have
a
slightly
different
take
on
this
one.)
The
judge
also
noted
that
he’d
have
to
issue
a
gag
order
on
the
jurors
themselves,
because
nothing
in
the
statute
binds
them
to
secrecy.
Appearing
for
the
media
intervenors,
which
included
more
or
less
every
news
outlet
in
the
country,
Clyde
argued
that
there’s
a
presumption
that
all
court
procedures
should
be
public,
and
pointed
to
the
word
“shall”
in
the
statute.
He
also
agreed
to
take
any
appeal
to
the
Georgia
Supreme
Court,
as
opposed
to
rolling
the
dice
at
the
Eleventh
Circuit.
In
the
end,
Judge
McBurney
seemed
mindful
that
delaying
his
decision
might
well
obviate
the
need
to
make
it
all.
The
District
Attorney
has
conceded
the
report
will
become
public
—
and
soon,
since
she’s
on
the
brink
of
a
charging
decision.
And
once
the
report
is
out,
the
media
argument
is
either
moot,
or
confined
to
the
issue
of
any
redactions.
But
if
Judge
McBurney
beats
DA
Willis
to
the
punch,
he’ll
allow
time
for
her
to
ask
for
relief
—
the
order
and
publication
won’t
be
simultaneous.
Meanwhile
over
on
Truth
Social,
Donald
Trump
seems
to
be
taking
all
of
this
in
stride:
Mmmmm,
stollen.
And
if
we
enjoy
it
before
February,
it
won’t
even
be
stale.
Liz
Dye lives
in
Baltimore
where
she
writes
about
law
and
politics.