Opinion: Georgia grand juror’s tacky media tour won’t trash the case

Editor’s Note: Fred Wertheimer is president of Democracy 21, a nonpartisan, nonprofit organization that works to strengthen our democracy. Norman Eisen is a senior fellow at Brookings and a CNN legal analyst. The views expressed in this commentary are their own. Read more opinion articles on CNN.

Georgia special grand jury foreperson Emily Kohrs, one of the “random people” chosen to help with the sweeping investigation of former President Donald Trump, has garnered considerable attention by making the major media rounds. It is reminiscent of “the full Ginsberg,” in which Monica Lewinsky’s lawyer during the Clinton impeachment stopped at every Sunday show. Perhaps we need a new coinage: “the full Kohrs.”

It certainly would have been better for decorum if Kohrs had refrained from speaking to the media, and she may even trigger motions challenging potential indictments. But that won’t change anything legally.

Any such motions will fail under Georgia law because she is neither a member of the regular grand jury that would ultimately issue charges, nor of the trial jury that would adjudicate them. And for that reason, any PR damage is likely to be long forgotten before trials occur.

To review the whirlwind of the past days, after portions of the Georgia special grand jury report were released, Kohrs spoke to a series of major print and broadcast outlets. When asked on CNN about the names recommended for indictment, she stated, “the big name that everyone keeps asking me about - I don’t think you’ll be shocked,” adding that the jurors “definitely heard a lot about former President Trump and we definitely discussed him a lot in the room,” and that “I am positive I have heard the president on the phone more than once.”

She also described her impressions about other witnesses, including Cassidy Hutchinson, Brad Raffensperger, Mark Meadows and Brian Kemp, in an interview with the Associated Press. And she told the Atlanta Journal-Constitution that the evidence considered included new audio recordings that have not yet been made public. She also provided the press with quite a bit of behind the scenes color, for example describing the popsicle she was enjoying when she swore in one witness.

After Kohrs’ public statements, lawyers connected to several witnesses in the Fulton County proceedings on Wednesday suggested that they would use her remarks in an effort to quash or dismiss the indictments. The argument would presumably be that she violated the secrecy that pertains to the special grand jury proceedings and prejudiced defendants’ right to a fair trial.

Such arguments are doomed under Georgia law. Georgia does instruct jurors to “keep the deliberations of the grand jury secret.” But the state’s Supreme Court has explained that “deliberations” are quite limited. They do not include “all things coming to (a) person’s knowledge as a result of grand jury attendance.” In fact, grand jury members are not “bound to secrecy regarding the evidence presented to a grand jury” – just their discussions with each other about it.

Kohrs’ statements focus on the demeanor of several GOP witnesses, the evidence presented to the grand jury and the fact that the jury concluded its investigation and made recommendations – not “deliberations” to which the special grand jury is “bound to secrecy.” Kohrs’ statements did not disclose the content of discussions, even though they indicate that discussions took place.

There are also unique considerations because Kohrs was the foreperson of a special grand jury – and a partial report about its investigation was already released. Georgia law expressly authorizes the publication of special grand jury reports and recommendations.

Thus, Kohrs’ related comments raise a lessened secrecy concern than some have claimed. Georgia simply does not afford that degree of legal protection to most aspects of a grand jury’s work. Indeed, since 1939, Georgia courts have recognized that general statements by grand juries, including in published recommendations, did not create a basis for dismissing an indictment.

The supervising judge, Robert McBurney, alluded to this relatively forgiving standard during oral argument on the motion to release the special grand jury report. Pressing the litigants on whether or not to keep all or portions of the report secret, he suggested that there would be nothing to stop special grand jurors from speaking out if they so chose. While he did not formally reach that conclusion, and in fact (Kohrs says) provided her with guidelines on what can and cannot be disclosed, his nod at special grand jurors’ leeway is notable.

Perhaps the closest Kohrs came to disclosing deliberations was when she stated the special grand jury did not call Trump because he “was not a battle we picked to fight.” But even there, she did not reveal the debate points the grand jurors engaged in to reach that decision. Rather, she was stating the outcome. In light of Georgia’s loose restrictions, that is not enough to cross the line.

More fundamentally, like her other statements, that one does not harm the former president or anyone else. That is the final and biggest reason that Kohrs’ statements cannot result in the dismissals of future indictments: no defendant’s rights to a fair trial have been prejudiced. Under Georgia law, her comments to the press would have to “(castigate, impugn a defendant’s) integrity, … and subject (him) to the odium of condemnation … without giving him the slightest opportunity to defend himself.”

Kohrs has not done that. Rather, she mentions general recollections of witnesses and subjects of conversation and does not name individuals recommended for indictment. Any individuals ultimately charged will be able to mount defenses in court – and in the court of public opinion.

Nor has Kohrs revealed any prejudice in the special grand jury’s already concluded deliberations. For instance, there is no hint in her remarks of special grand jurors being pressured to decide in one way or another.

The DA may now seek indictments from a regular grand jury that may have read or seen Kohrs’ remarks – but those grand jurors almost certainly have her actual report, so whatever hints Kohrs has dropped are hardly news to them. Any potential targets might argue the statements will influence the trial jurors, but that can be dealt with during jury selection by asking prospective jurors if they heard the statements and were affected by them.

Kohrs won’t win any prizes for grand jury foreperson etiquette. Her display has been unseemly, to say the least. It has violated good taste – but not the law.