Is the Trump Grand Jury Foreperson Screwing Everything Up?

Emily Kohrs, the forewoman of the Georgia special purpose grand jury charged with investigating election interference by former President Donald Trump and his allies, has been on a media tour since the grand jury issued its final report. Her quirky, almost giddy interviews in which she promised that indictments are on the way have shocked and angered some Trump supporters and elated many of his detractors.

But a large portion of the public, including the legal community, is baffled by her lack of discretion and seriousness. Kohrs’ media parade, before anyone has been indicted let alone convicted, is unprecedented. And the stakes are high. Never before has a grand jury investigated a former president and current presidential candidate. Criminal charges could be forthcoming. Some may wish the 30-year-old Kohrs would have a little more dignity.

But is what she did wrong?

Not really.

Special Grand Jury Proceedings

In case you have been living under a rock, Trump has been under investigation in Atlanta, Georgia, for his attempt to overturn the results of the 2020 election. Central to the investigation is a Jan. 2, 2021, call he made to Georgia Secretary of State Brad Raffensperger, a fellow Republican, in which he demanded that Raffensperger “find” 11,780 votes. That would have been enough to change the results in the state.

Georgia Superior Court Judge Robert McBurney empaneled a special grand jury to look into the matter. The grand jurors heard testimony from 75 witnesses, including Rudy Giuliani, Mark Meadows (Trump’s Chief of Staff), and Sen. Lindsey Graham of South Carolina. In February, the grand jury, led by Kohrs, issued a grand jury report, portions of which Judge McBurney has since made public.

What Did the Foreperson Do?

And then, as if she were auditioning for an episode of Jurors Gone Wild, Kohrs did a series of interviews with CNN and other news outlets that were reported by Reuters, the New York Times, and the Associated Press. While declining to name specific individuals by name, she said that the grand jury recommended multiple indictments — “it’s not a short list.” She continued: “There may be some names on that list that you wouldn’t expect. But the big name that everyone keeps asking me about – I don’t think you will be shocked.” She also suggested that some unnamed witnesses should face perjury charges.

That’s not all. She described a casual, almost chummy, relationship with the district attorney’s office. She faces criticism, especially from Trump lawyers Jennifer Little and Drew Findling, for making a circus out of what they call a “witch hunt.” They point to her bragging about swearing in a witness while holding a teenage mutant ninja turtle popsicle and asking Senator Graham if it was too early in the year to wear a Santa hat.

There Are Three Types of Juries?

Commentators and some legal experts have just shaken their heads at Kohrs’ behavior, which rubs many the wrong way. But while the interviews may have induced a nationwide cringe, Kohrs didn’t violate the law.

Petit Juries v. Grand Juries

People often confuse grand juries with petit juries. Petit juries are the “jury of your peers” guaranteed by the Sixth Amendment of the U.S. Constitution. They hear evidence, consider the law as given to them by the judge, deliberate in the jury room, then return a verdict. You have a constitutional right to fair, unbiased, and impartial jurors.

Grand juries are different. In certain criminal cases (felonies and, in some states, certain misdemeanors), your right to a grand jury is guaranteed by the Fifth Amendment. Grand juries investigate potential crimes and determine whether there’s probable cause to indict a suspect. The judge and the prosecution take over from there.

There is nothing fair about the grand jury process. Fulton County District Attorney Fani Willis, who is ultimately responsible for the charging decision, acts as the grand jury’s legal advisor and the chief inquisitor. The rules of evidence that apply at a trial don’t apply in grand jury proceedings, so the prosecution influences, if not decides, what the grand jury will see and hear. Unlike a petit jury, a grand jury can subpoena witnesses. There’s truth in the old saying that prosecutors can get a grand jury to indict a ham sandwich.

Special Grand Juries

Special purpose grand juries under Georgia law are different still. They investigate potential crimes, but they can’t issue indictments. Instead, when they finish their work, the jurors issue a report. If they recommend an indictment, the prosecutor can present evidence to a regular grand jury if they believe an indictment is warranted.

So No Harm, No Foul?

Because the special grand jury has no power to indict, the foreperson’s public statements about the results in the report do not compromise an accused’s right to a fair trial. People may disagree about whether Kohrs violated her oath not to discuss juror deliberations — some of her statements certainly seem close to crossing the line — but as far as the unnamed targets of the investigation are concerned, they don’t have legal cause to gripe. Showing that future jurors were somehow influenced by statements that won’t survive the next media cycle would seem to be an uphill battle at best for Trump’s lawyers.

Kohrs did put the DA in a difficult position, however. Having said that the special grand jury recommended indictments, Kohrs has pressured Willis into presenting the matter to a regular grand jury (not that she wouldn’t have anyway). If those grand jurors keep their mouths shut — at least until after any trial takes place — Willis’ office may have an easier time prosecuting whoever may end up being indicted.

Related Resources:

FBI Raids Mar-a-Lago: Could Trump Hold Office Again? (FindLaw’s Courtside)

Jury Selection and Bias Under the Sixth Amendment (FindLaw’s U.S. Constitution)

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