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August 14, 2023

Editor’s note: This Expert Backgrounder has been updated. See What to Expect When You’re Expecting a Trump Trial in Fulton County.

 

Former President Donald Trump is likely about to be indicted for the fourth time, with criminal charges imminent in Georgia stemming from an alleged conspiracy to overturn the 2020 presidential election results in that state. For the past 2 1/2 years, Fulton County District Attorney Fani Willis and her office have been investigating Trump and others in connection with attempts to subvert his election loss to President Joe Biden.

This primer answers questions about what to expect in the days ahead: the operation of the Georgia grand jury, various arraignment and pre-trial legal issues that will arise as the case proceeds, and the consequences Trump and others are facing. 

We will update this essay as we learn more, including when (and if) we have the indictment in hand. 

Grand Juries and Special Purpose Grand Juries

  • What’s the difference between a special purpose grand jury and a grand jury?
    • Georgia law requires indictment by a grand jury in most felony cases. Grand juries sit for a two-month term and will usually convene twice a week. While grand juries sit—and there may be several working at the same time in the same court—they will be presented with evidence by prosecutors on a breadth of criminal cases. The grand jury’s role is to “screen” the state’s evidence and ensure the state has met the probable cause threshold. If the threshold is met, the grand jury will return a “true bill” of indictment or a “special presentment” charging that person(s) with a criminal offense.
    • A special purpose grand jury, however, is convened to assist a district attorney’s investigation into a specific matter.  Unlike a regular grand jury, special purpose grand juries are not authorized to issue indictments. They can only recommend indictments, which are not binding on the district attorney. If the district attorney heeds the recommendation, they must then pursue charges through the regular grand jury process, presenting their evidence before an indictment can be returned. 
    • See more on Georgia grand juries and special purpose grand juries — here, here, here, and here.
  • Who sits on a grand jury? 
    • Grand jurors are Georgia citizens 18 years or older who have resided in the county for at least six months prior to the time of service. People with felony convictions are not eligible to serve. GA Code § 15-12-60
    • A grand jury consists of 16-23 jurors, and 12 votes are required to return an indictment. GA Code § 15-12-61
    • The nature of grand jury deliberations are not public, but the names of grand jurors appear on the indictment once the presiding judge reveals it in open court. GA Code § 17-7-54 
  • How does the special purpose grand jury operate?
    • Special purpose grand juries are convened to investigate specific matters that go beyond the routine variety of cases that regular grand juries typically handle within the particular jurisdiction. GA Code § 15-12-100 Special purpose grand juries are often used in lengthier or more complex investigations, such as public corruption, organized crime, or complex financial crimes.
      • Special purpose grand juries are supervised by a county superior court judge, as assigned by the chief judge. GA Code § 15-12-101 Special purpose grand juries may compel evidence and subpoena witnesses. GA Code § 15-12-100
  • This is expected to be a complicated indictment. How can an indictment be presented to the grand jury and returned so quickly?
    • The amount of time it takes to indict complicated cases such as RICO crimes varies widely depending on how the grand jury is utilized. Depending on the nature of the investigation, prosecutors can use a grand jury (regular or special purpose) to compile and hear evidence, which can take weeks or months. In other circumstances, prosecutors may be able to conduct a thorough investigation without using either grand jury, and then they present their findings to a grand jury only to seek an indictment based on the evidence gathered outside of the grand jury process—which may take the grand jury only a day or two.
    • In this case, DA Willis opened an investigation nearly one year before the special purpose grand jury spent eight months gathering evidence, ultimately producing a comprehensive report of its findings. It is reasonable that DA Willis would be able to present those findings to this grand jury to return an indictment in only a matter of days.
  • What will happen in court on the day(s) DA Willis presents her case to a grand jury?
    • Prosecutors often present evidence using one or more summary witnesses–typically law enforcement officers who have worked on the investigation. These summary witnesses can testify about most or all of the evidence obtained throughout the course of the investigation, including hearsay evidence that they would be not able to testify to (because they lack firsthand knowledge) at trial.
    • It is expected that DA Willis is calling several additional witnesses to testify before the grand jury this week: Geoff Duncan (R); George Chidi; former Georgia state senator Jen Jordan (D) and former state lawmaker Bee Nguyen (D).
    • Prosecutors will walk through the indictment in detail, presenting evidence to substantiate the allegations therein.
    • The defendants named in the indictment typically do not appear before the grand jury. Grand jurors, however, are able to request additional evidence from prosecutors, including requests for certain individuals (including the named defendants) to testify if the grand jury believes it necessary to assist in their evaluation of the indictment.
  • What will the indictment tell us about the DA’s readiness to try this case? 
    • The expected length and detail of the indictment, combined with the amount of time that the special purpose grand jury was investigating, suggests that DA Willis has built a strong case and is prepared to proceed to trial expeditiously. 
    • For a full analysis of the expected charges, see Brookings Report (pp. 109–181). 
    • DA Willis is also presumably prepared to satisfy speedy trial rules, which are discussed below. 

Next Steps: Getting to Trial

  • What happens after the indictment is returned? Will former President Trump and the other defendants be arrested?
    • It is highly unlikely that the defendants will be arrested. Instead, the prosecutors will notify them that they have been indicted. The next step will be arraignment—where the defendants appear in court to be formally charged. Arraignment typically occurs within a few days. Coordinating all the defendants may require the arraignment to be set at a later date or to have different defendants arraigned on different days. At arraignment, it is expected that all the defendants will enter a plea of “not guilty,” and then the court will begin setting a pre-trial and trial schedule.
  • What is the timetable to get to trial?
    • If a defendant makes a demand in August for a speedy trial under Georgia law, the trial must commence by November 3.* If the demand is made after August but before November, then the trial must commence before January 1, 2024.
      • When a speedy trial is demanded in a noncapital case, a defendant must be tried “at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter.” GA Code § 17-7-170(a). However, during those court terms there must be “juries impaneled and qualified to try the defendant.” GA Code § 17-7-170(b). Consequently, in the event that a jury demand is made at the last moment in a term when a jury could not be impaneled in time to try the case in that term, the demand is considered applicable instead to the following term. Smith v. State, 406 S.E.2d 118, 119 (Ga. App. 1991). In the event a trial is not timely brought, “the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” GA Code § 17-7-170(b). The “terms of court” for the Superior Court of Fulton County commence on the following days: the “First Monday in January, March, May, July, September, and November.” GA Code § 15-6-3(3).
  • What happens if not all the defendants elect a speedy trial?
    • The court would have the option of either proceeding to trial with all defendants in a timely fashion or to sever the cases. The decision to sever the trial for some of the defendants is in the trial court’s discretion based on whether there is prejudice to the defendant. GA Code § 17-8-4. See Pruitt v. State, 589 S.E.2d 864, 867 (Ga. App. 2003) (finding that a trial court has discretion to sever cases absent “a clear showing of prejudice” to a codefendant). (There are separate rules for severance that would apply under federal law if the case was removed — see e.g., Rules 8, 13, and 14 of the Federal Rules of Criminal Procedure; and Fed. Prac. & Proc. Crim. § 146 (5th ed.))
  • How will this case affect the other prosecutions of Trump and vice versa?
    • If a speedy trial demand is made in Georgia, the other federal and state prosecutions should have no bearing on bringing this case in Georgia within the statutory timeline. That is because there is no exception to the timeline included in the statute. See GA Code § 17-7-170. A trial in Georgia would, however, result in excusable delay in the two federal prosecutions. That is, the time required for the Georgia trial “shall be excluded in computing the time” under the federal Speedy Trial Act. 18 U.S.C. 3161(h)(1)(B) (excluding “delay resulting from trial with respect to other charges against the defendant”). Similarly, such time would be excluded from any speedy trial calculation in New York. NY CPL 30.30(4)(a) (excluding “a reasonable period of delay resulting from other proceedings concerning the defendant, including … trial of other charges”).
  • What happens to the investigation of State Senator Burt Jones? Even though DA Willis is recused, could another special grand jury continue to investigate Jones?
    • Yes. Judge McBurney’s order specifically stated that the Attorney General could designate another prosecutor’s office to pursue such charges. Because grand jury proceedings are secret, it is possible that another prosecutor’s office is currently investigating Jones.
  • How will the Georgia prosecution interact with other non-Trump insurrection cases such as Blassingame v. Trump?
    • This is mostly a matter of logistics that may well slow down any civil cases in which Trump is involved. Federal Rules of Civil Procedure, Rule 16(b)(4) allows any scheduling order to be modified for “good cause.” Moreover, district courts have the inherent authority to stay civil proceedings “in the interest of justice and in the light of the particular circumstances of the case”—including “in light of parallel criminal proceedings.” Doe v. Sipper, 869 F. Supp. 2d 113, 116 (D.D.C. 2012) (internal quotation marks omitted). “A close relationship between the two actions, furthermore, is often viewed as the most significant factor in the balancing test.” Id. It will be within the discretion of each judge considering motions to stay proceedings to weigh the burdens on and interests of the parties.
  • What happens if Trump wins the presidential election and the case has not been tried?
    • There are competing theories about whether a criminal prosecution against a sitting president is constitutional. One theory holds that the U.S. Constitution does not provide immunity to a sitting president, and criminal prosecution is permissible in addition to impeachment.
      A competing theory is that an incumbent president is immune from criminal trial and sentencing (perhaps even more so for a state or local prosecution), and that the only mechanism the U.S. Constitution provides to address criminal misconduct by a president is through impeachment.
      There is a historical example for criminal prosecution of a sitting president: in 1872, President Ulysses S. Grant was arrested for speeding on his carriage in Washington, D.C., and Grant did not raise any immunity argument. However, it was not a case of the same magnitude as the one in Georgia.
      All that said, the constitutional analysis may turn on whether a trial is already complete, and in the stages of post-conviction appellate litigation, which imposes less of a burden on a sitting president.
    • If Trump is found to be (temporarily) immune from the criminal process as a sitting president, the case against other defendants would likely proceed without Trump during his second term in office. In that situation, it would presumably resume once his term ends.
  •  How will the judge be chosen?
    • Under Georgia Rule of Superior Court 3.1, cases are usually assigned at random by the clerk of the court. Clerks have no discretion in determining judicial assignments and carry out the method established by the judges. Often higher profile or especially complex cases will be taken “off the wheel” and assigned to a more senior judge, but that is a determination that Chief Judge Ural Glanville would make.

Removal to Federal Court

  • Could the case be removed to federal court?
    • Trump could try to remove the case to federal court. Federal law permits any officer of the United States to remove a state prosecution to federal court if the prosecution is “for or relating to any act under color of such office.” 28 U.S. Code § 1442. To “act under color of such office” means that the individual was acting within their official capacity and authority as a federal officer. The purpose of the law is to provide a federal forum for defendants to raise defenses that arise from their official duties.
    • In the Manhattan DA’s case against Trump, federal judge Alvin Hellerstein ruled against Trump’s attempt to remove that case to federal court – finding that Trump was not acting as a federal officer, did not raise a “colorable federal defense,” and “failed to satisfy” the standard for removal. 23cv3773 Order and Opinion Granting Remand 07.19.2023.pdf (uscourts.gov)
    • Any of the defendants could theoretically attempt to remove the case, as the law permits removal by any officer of the United States “or any person acting under that officer.” So, a defendant claiming that he was acting under the direction of then-President Trump or any other federal officer or agency could seek removal. If Trump were not acting as an officer, as Judge Hellerstein found in the Manhattan case, then there would be no basis for other defendants to remove. 
    • For a full analysis see Brookings report (pp.187-190). 
  • How does the removal process work?
    • The defendant would file a notice of removal in federal court, and then DA Willis would have the opportunity to contest removal to have the case remanded back to state court.
    • The presiding federal judge would make a determination based on whether the defendant(s) has any “colorable federal defense” to the state charges.
    • State proceedings continue pending a removal ruling. 
  • Is it possible that some but not all defendants remove the case to federal court?
    • Yes. Whichever defendants seek and meet the criteria for removal could have their case removed to federal court, while those who do not would proceed in state court.

Dismissing the Charges

  • Can the defendants dismiss the indictment?
    • Under Georgia law, a criminal defendant can try to dismiss an indictment by a “demurrer.” A demurrer tests the sufficiency of the indictment but is not a mechanism for a defendant to have the court dismiss the charges because of specific defenses or any other claim of innocence.
      • A “special demurrer” challenges the specificity of the indictment, essentially arguing that the defendant’s due process was violated because the indictment lacks sufficient detail about the conduct being charged. A special demurrer has to be filed within 10 days after arraignment. GA Code § 17-7-110
      • A “general demurrer” challenges the legal sufficiency of the indictment, essentially arguing that the charges lack an essential element of the crime. A general demurrer can be raised at any time, even during trial.
  • Does Trump have immunity from prosecution because he was President?
    • Trump will likely claim immunity because he was in office when the charged conduct occurred. Immunity is not automatic because someone was a federal official at the time of the offense. Instead, immunity is based on the nature of the function performed. Trump (or any other federal official raising immunity) would have to establish that they were engaging in conduct authorized by federal law and were doing no more than what was necessary and proper to effectuate their federal duties.
    • In February 2022, DC federal district court judge Amit Mehta rejected Trump’s claim of immunity in a civil case involving the assault on the Capitol. In March 2023, the Department of Justice submitted a brief to the appeals court in support of Judge Mehta’s ruling on the scope of presidential immunity.
    • For a full analysis see Brookings report (pp.187–187; Appendix A at pp.214-252).
  • What impact do Trump’s prior attempts to disqualify the grand jury, DA Willis, and the judge have on the prosecution?
    • None. Trump already tried to disqualify DA Willis and her office, to quash the special grand jury, and to throw out evidence it had obtained. He filed a motion with the court in March 2023. On July 31, 2023, Judge McBurney dismissed Trump’s motion, finding that Trump’s claims were “either insufficient or else speculative and unrealized.” Judge McBurney also concluded that Trump failed to show any conflict, interest or misconduct by DA Willis that would warrant disqualification.
    • President Trump could raise these or similar arguments again, especially now that his standing is stronger following an indictment. However, his particular claims are unlikely to be successful given the unequivocal nature of the opinions issued by Judge McBurney and  the Supreme Court of Georgia on these matters.

Pretrial Detention

  • Will the defendants be detained pending trial or released on bond? 
    • The defendants would presumably be released on bond from the start, but it is not completely certain. 
    • A superior court judge makes determinations of pretrial release. Georgia law permits bail if the court finds that the defendant poses no significant risk of (1) flight; (2) threat to the community; (3) committing a felony pending trial; and (4) intimidating a witness or otherwise obstructing justice.
    • On one hand, Trump will argue that detention is not warranted because he has been charged in three other jurisdictions and will claim that he has complied with the conditions in those cases. On the other hand, Trump has made comments in the context of the other pending prosecutions that could be interpreted as intimidating witnesses or obstructing justice, which could be used against him for purposes of determining detention. 
    • The other defendants are likely to satisfy the conditions for bail and therefore should be entitled to pretrial release. 
    • If the judge grants bond, the judge is also likely to impose certain common conditions of release, such as requiring defendants to relinquish their passports and avoid communication with other defendants and prospective witnesses.

Jury Selection

  • Will the court be able to empanel a fair and impartial jury?
    • Yes. Jury selection is likely to be long and tedious because the case is as high-profile as they come, but ultimately the court will be able to find twelve jurors (and several alternates) who can be fair and impartial.
  • How long is jury selection likely to take?
    • Jury selection in the massive organized crime trial against Atlanta rapper Young Thug, among others, recently entered its eighth month. That, too, is a RICO case brought by DA Willis in Fulton County. That length of time is an anomaly, and the Young Thug case has had unique extenuating circumstances. However, with the number of defendants and the nature of the case involving the 2020 election interference, jury selection could easily last several months.
  • How long is the trial likely to take, and how does that affect jury selection?
    • The length and nature of the trial will cause jury selection to take even longer than usual. Given the scope of the conduct, the number of defendants, and the magnitude of the case, trial is expected to be lengthy–several weeks or even months. Finding jurors who are able to participate for that length of time in an ordinary case is difficult and will be even harder amidst the current hyper-charged political climate.  

Trial Procedures

  • Will the trial be televised?
    • Yes, unlike federal trials, televisions cameras are permitted in Georgia criminal trials.
  • Does Trump need to attend his trial?
    • The Sixth Amendment guarantees the right to attend trial and confront witnesses, but a defendant can waive that right. In federal cases, Rule 43 of the Federal Rules of Criminal Procedure requires a defendant to attend trial in all but a few circumstances. However, there is no equivalent rule in Georgia, and Georgia rules permit a judge to continue the trial in a party’s absence if a party is prevented from attending–which suggests that a party’s presence is not required. GA Code § 17-8-23

Post-Trial Procedure

  • What sentences are the defendants potentially facing if convicted?
    Note this section will be updated following an indictment and specific charges filed against the defendants.

    • RICO: 5-20 years
    • Election law crimes:
      • Criminal Solicitation in the First Degree: 1-3 years (GA Code § 21-2-604)
      • Criminal Solicitation in the Second Degree: a fine not exceeding $ 1,000, a maximum of one year’s imprisonment, or both. See GA Code § 17-10-3. NB: generally, all misdemeanors under Georgia law are subject to a maximum fine of $1,000 and/or 1 year in prison. In some circumstances, the fine can be increased to $,5000. GA Code § 17-10-4.
      • Conspiracy to Commit Election Fraud (GA Code § 21-2-603): 
        • Conviction involving a felony violation of this chapter shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he or she could have been sentenced if he or she had been convicted of the crime conspired to have been committed, by one-half the maximum fine to which he or she could have been subjected if he or she had been convicted of such crime, or both. 
        • Conviction of the offense of conspiracy to commit election fraud involving a misdemeanor violation of this chapter shall be punished as a misdemeanor.
        • Intentional interference with performance of election duties: Misdemeanor (Ga. Code § 21-2-597)
        • Interference with primaries and elections: 1-10 years, or a fine not in excess of $100,000, or both (GA Code § 21-2-566)
        • Unlawful alteration or destruction of entries (GA Code § 21-2-562):
          • If willful → 1-10 years, or a fine not in excess of $100,000, or both
          • If willfully neglects or refuses → Misdemeanor 
        • Failure of public official or political officer to perform duty: Misdemeanor (GA Code § 21-2-596)
        • Making of false statements generally: Misdemeanor (GA Code § 21-2-560)
        • Destroying, defacing, or delaying delivery of ballots: Misdemeanor (GA Code § 21-2-576)
      • Other crimes:
        • Computer Theft, Computer Trespass, Computer Invasion of Privacy: fined not more than $50,000 or imprisoned not more than 15 years, or both (GA Code § 16-9-93(h))
        • False statements and writings: fine of not more than $1,000 or imprisonment for not less than one nor more than five years, or both (GA Code § 16-10-20)
        • False swearing: fine of not more than $1,000 or imprisonment for not less than one nor more than five years, or both (GA Code § 16-10-71)
        • Influencing witnesses:
        • Forgery (GA Code § 16-9-2): 
          • 1st Degree: 1-15 years
          • 2nd Degree: 1-5 years
          • 3rd Degree: 1-5 years
          • 4th Degree: Misdemeanor
        • Violation of oath by public officer: 1-5 years (GA Code § 16-10-1)
    • Are there statutory minimums?
    • Georgia has a peculiar, standalone law whereby sentences that appear to be mandatory minimums can be probated at the judge’s discretion.
      • GA Code § 17-10-1: “The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including service of a probated sentence in the sentencing options system, as provided by Article 9 of Chapter 8 of Title 42, and including the authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has begun.”
  • If convicted, can the defendants appeal?
    • Yes.
  • Would they be released on appeal or have to begin their sentences right away?
    • In Georgia usually the defendant is not released pending appeal, even in high-profile cases. 
  • If convicted, can the defendants be pardoned under state or federal law?
    • Yes, but Georgia pardons are determined by the state’s bipartisan Board of Pardons and Paroles. Additionally, pardons are not available until a period of five years after the completion of all sentences. 

Political and Policy Issues

  • Can the Georgia governor or legislature intervene?
    • Trump cannot be preemptively pardoned — the state’s clemency power has always been limited to post-conviction.
    • The power to pardon in Georgia shifted away from the governor to the Board of Paroles and Pardons in 1976, and is reflected in the 1983 revision of Georgia’s Constitution. See Charron v. State Bd. of Pardons & Paroles (Ga.  Sup. Ct. 1984); Ga. Const. art. IV, § 2, ¶1.  
    • Georgia’s Constitution makes clear that the Board of Paroles and Pardons may grant pardons only “after conviction.” This was also the case when the state’s governor had clemency power. The Board’s current guidelines state a person cannot apply for pardon until at least 5 years after completing their sentence, and must have lived a law-abiding life since the completion of that sentence, with no pending charges against them. 
    • As the Brookings report (p.196) concluded: “there is no case law on which Trump can rely to support an argument that the Board of Paroles and Pardons can grant him preemptive clemency.”
    • In May 2023, Georgia Governor Brian Kemp signed into a law a bill establishing a Prosecuting Attorneys Qualifications Commission (PACQ) with “authority to investigate alleged misconduct by district attorneys and solicitors-general and discipline, remove, or cause the involuntary retirement of those who meet the conditions for removal.’’ The Commission is not yet up and running, and must “establish standards of conduct and rules for the commission’s governance, subject to approval by the Supreme Court, by October 1, 2023.” The bill established several grounds for removal, including willful misconduct in office; willful and persistent failure to carry out statutory duties; and conduct prejudicial to the administration of justice which brings the office into disrepute. Depending on when the Commission is ready to hear cases, and where we are in Willis’ prosecution(s), Trump and other defendants could try to utilize the new removal measures. But Trump has already failed before the Georgia courts to have Willis removed off the case.
  • Do these charges impact the federal cases against Trump under DOJ policy 9-2.031 Dual and Successive Prosecution Policy?
    • No. According to DOJ guidelines, “This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.”
      • In this instance there is a strong federal interest in prosecuting conspiracies and attempts to subvert the federal presidential election and obstruct an official proceeding of Congress; and clearly the federal government, under special counsel Jack Smith, believe that Trump’s conduct constitutes a federal offense.
      • Moreover, the federal case will in all likelihood go to trial and be completed before the state case, so the Georgia prosecution will not precede Jack Smith’s; and, therefore, the Georgia prosecution necessarily could not vindicate the substantial federal interest before the federal prosecution.  

Editor’s note: Readers may also be interested in Erica J. Hashimoto, The Fulton County DA’s Options: Multi-Defendant Trial(s) and the Paths Ahead.

Editor’s note: This essay incorrectly stated, “If a defendant makes a demand in August for a speedy trial under Georgia law, the trial must commence by October 31.” The correct date is November 3, because the Atlanta Circuit Fulton County term begins on the first Monday in November.

 

IMAGE: Fulton County Courthouse in Atlanta, Georgia (via Getty Images)

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