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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.
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:
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 INCLUDED 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.
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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.”
Perdue and Loeffler did not immediately return messages seeking comment Friday.
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.
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Kinnard reported from Columbia, South Carolina.
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Meg Kinnard can be reached at http://twitter.com/MegKinnardAP
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