By Jim
Geraghty
Thursday,
February 23, 2023
It is
not all that difficult for a prosecutor to convince a grand jury to indict a
suspected criminal. There is no defense attorney for the accused person present;
there is no cross-examination of witnesses. The grand jury, made up of
approximately 16 to 23 adults, only hears the prosecutor’s arguments, evidence,
and testimony from witnesses chosen by the prosecution. After the presentation,
the grand jury votes in secret, and it does not need to be unanimous; according to the U.S. Department of
Justice, at least
twelve jurors must concur to issue an indictment.
The
grand jury votes in secret on whether it believes that enough evidence exists
to charge the person with a crime, which is a slightly different and lower
standard than whether the accused is guilty of the crime. Sol Wachtler, the
former chief judge of New York’s Court of Appeals, famously said
that, “District
attorneys now have so much influence on grand juries that ‘by and large’ they
could get them to ‘indict a ham sandwich.’”
The
famous saying, “You can get a grand jury to indict a ham sandwich,” is meant to
emphasize that an indictment is not an indication of guilt, and that a skilled
prosecutor can usually sway a grand jury to believe almost anything. This
saying is so persistent and ubiquitous, you could be forgiven for initially
believing that there is some sort of notorious ham-sandwich mafia that plagues
innocent Americans.
In the
aftermath of the 2020 election, former president Donald Trump made phone calls
to Georgia state officials, including one particularly notorious call to
Georgia’s secretary of state, Brad Raffensperger, berating him and declaring
that Raffensperger needed to “find” enough votes to declare Trump the winner of
the state.
Fulton
County district attorney Fani T. Willis — a Democrat — subsequently began an
investigation into whether Trump or anyone else broke Georgia laws during the
post-election fight about the state’s results. In May 2022, Willis convened a
grand jury which heard testimony from 75 witnesses behind closed doors up until
this past January.
Last
week, the public learned that a majority of the panel recommended that
prosecutors should pursue perjury charges against at least one witness: “A
majority of the grand jury believes that perjury may have been committed by one
or more witnesses testifying before it. The grand jury recommends that the
District Attorney seek appropriate indictments for such crimes where the
evidence is compelling.”
President
Trump did not testify before the grand jury, which means the investigation is
not going to indict him. Trump characterized the decision as “total
exoneration.”
Grand
jurors are selected in a similar manner to jurors in criminal trials, except
there is no juror challenge by either side — as mentioned earlier, there is no
defense attorney present.
When
jurors are selected at random from lists of English-speaking, adult U.S.
citizens who reside in a particular county and haven’t served on a jury in the
past year, there’s always the chance that the foreperson of the jury will turn
out to be a 30-year-old woman who is between jobs, who has never voted, and who
appears thrilled to be the center of attention.
This
week, Americans are getting a good look at the usually secret world of a grand
jury, as the foreperson of the grand jury investigating the election aftermath,
Emily Kohrs, has chosen to go on a media tour, sitting down for interviews with
the Associated
Press, the New
York Times, the Atlanta
Journal Constitution, CNN, and NBC.
Grand
jurors are instructed to not speak of their deliberations or unpublished
portions of the panel’s final report. So far, Kohrs appears to have walked
right up to the line.
She
described the high-security environment to the AP: “They were led down a
staircase into a garage beneath a downtown Atlanta courthouse, where officers
with big guns were waiting. From there, they were ushered into vans with
heavily tinted windows and driven to their cars under police escort.”
She told
the Atlanta Journal Constitution, “We heard a lot of recordings of
President Trump on the phone is amazing how many hours of footage you can find
of that man on the phone. . . . Some of these that were privately recorded by
people or recorded by a staffer.”
She told CNN, “We definitely heard a lot about
former President Trump, and we definitely just discussed him a lot in the room.
And I will say that when this list comes out, you wouldn’t — there no major
plot twist waiting for you.”
She told NBC of the list of recommended
indictments, “I
will tell you, it’s not a short list. We saw 75 people. . . . There are
certainly names that you would recognize. There are definitely some names you
would expect.” When asked if the jury recommended more than a dozen
indictments, she said yes.
She told
the New York Times, “It was really cool. . . . I got 60 seconds of
eye contact with everyone who came in the room. You can tell a lot about people
in that 60 seconds.”
She also
told the Times, “This is one of the coolest things that’s ever
happened to me.” No doubt. She described herself as “insanely excited” about
the opportunity to be foreperson of such an important grand jury, and indeed,
both terms seem aptly applied.
In her
television interviews, Kohrs is positively beaming. She knows some big secrets,
and she knows she should not reveal them, but she can give little hints here
and there.
Kohrs’s
decision to do a slew of interviews won’t automatically taint the work of the
grand jury. But if Willis does indict individuals based upon the grand jury’s
work, defense attorneys will point to Kohrs’s descriptions as evidence of bias
and improper procedures — and one can never be 100 percent certain how a judge
will rule on those objections and motions.
On CNN,
former U.S. attorney Elie Honig characterized
Kohrs’s media tour as “a prosecutor’s nightmare”:
Mark my words, Donald Trump’s team is going to make a motion if there’s
an indictment to dismiss that indictment based on grand jury impropriety. She’s
not supposed to be talking about anything, really. But she’s really not
supposed to be talking about the deliberations. She’s talking about what
specific witnesses they saw, what the grand jury thought of them. She says some
of them we found credible, some we found funny. I don’t know why that’s
relevant, but she’s been saying we found this guy funny or interesting. I think
she’s potentially crossing a line here. It’s gonna be a real problem for
prosecutors.
MSNBC’s
Barbara McQuade, a former prosecutor, fumed:
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.
“She
shouldn’t be doing this,” concluded Dan Abrams,
ABC News’ chief legal analyst. “It isn’t helpful to the perception of the objectivity of the criminal
justice system, and it starts to feel like she’s putting pressure on the
district attorney to actually move forward with charges.”
For what
it’s worth, Trump attorney Alina Habba sees Kohrs’s media tour as a giant gift
to her efforts to defend the former president. Appearing on Newsmax, Habba gloated:
Your intentions were made clear. Thank you for going on national
television, for breaking any confidentiality or impartiality that you’re supposed
to hold as a grand juror, let alone the forewoman of the grand jury. . . . This
is not what you’re supposed to do. I don’t care if you’re a Republican, I don’t
care if you’re a Democrat, you’re not supposed to go in, and come out of a
grand jury, divulge secrets!
This is
our fame-obsessed culture at work. Grand jurors aren’t supposed to be famous,
even though what they do is enormously consequential and often a subject of
great public interest. When you’re selected to serve on a jury or a grand jury
on a huge criminal case, your first priority and obligation must be the law and
justice. If, after the verdict is rendered, you want to do some interviews, let
the public know how you interpreted the evidence and arguments of the case,
that’s fine. But the point of the process is not to turn you into a star or a
celebrity.
For years now,
the great Yuval Levin has
diagnosed and decried the trend of those entrusted with important
responsibilities choosing to see those positions as vehicles for
self-promotion:
It’s a pattern we can see across our society: People with roles to play
inside institutions instead see those institutions as platforms for them to
perform on, and the performance they offer up is generally a morality play
about their own marginalization. As a result, too often no one claims ownership
of the institutions of our society, and so no one accepts responsibility for
them.
The
quote attributed to Andy Warhol — or perhaps
misattributed —
“In the future, everyone will be world-famous for 15 minutes,” was not meant as
a declaration of a new constitutional right.
ADDENDUM: Because it was an
uncompetitive general-election race, last year’s contest for governor in
Maryland didn’t get a lot of attention outside the state. Democrat Wes Moore,
who really does have the kind of spectacular life story that impresses people,
won easily. And now, a surprising
number of Democrats argue that he should run for president someday, without bothering to see how Moore
performs in, you know, government. Moore has been in elected
office for 36 days now.
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