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Will Donald Trump Luck Out Again?

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Will Donald Trump Luck Out Again?

Former president Donald Trump speaks during an event at a fire station in East Palestine, Ohio, February 22, 2023. (Alan Freed/Reuters)

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By ANDREW C. MCCARTHY

February 23, 2023 1:12 PMListen to article

A Georgia grand juror’s bizarre media blitz could work to the former president’s advantage.

One of the best things about criminal justice in the United States is that, in matters of great significance, we place our trust in the judgment of the community — juries of our peers. That includes grand jurors, whose constitutional function is to be the citizen’s protection against overbearing prosecutors, making sure there is sufficient evidence before someone is stigmatized by a formal criminal accusation.

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Alas, for all our abstract adulation of “the community,” it is in reality a very human mixed bag. It inevitably includes the occasional limelight-seeker — plucked from obscurity, randomly assigned to The Big Case, and unable to contain herself. Emily Kohrs — the young woman who served as forewoman of the state grand jury in Fulton County, Ga., which just completed a final report of its probe of the Trump campaign’s efforts to disrupt the 2020 presidential election — is apparently one such publicity hound.

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For all his woes, Donald Trump is a lucky guy. As an unpopular politician who couldn’t get above 46 percent of the popular vote in 2016, he landed the historically unpopular Hillary Clinton as his opponent and, by a miracle of Electoral College math, managed to win the presidency. More recently, when it looked like the prosecutorial walls were closing in on him after he handed his Democratic enemies the gift of a slam-dunk case by mishandling classified intelligence, it suddenly emerged that President Biden, whom the Justice Department wouldn’t dream of prosecuting, had also been mishandling classified intelligence — for decades.

And now, on the cusp of being indicted in Georgia, Trump has been gifted Emily Kohrs.

The forewoman has done a whirlwind tour of the Trump Derangement Circuit — CNNMSNBC, the New York Times, etc. — effectively announcing that the special grand jury had recommended Trump and several of his associates and campaign allies be indicted for an array of crimes.

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One assumes that Judge Robert McBurney is ballistic. As we’ve detailed (here and here), McBurney last week directed that major redactions be made before the special grand jury’s final report was publicly released. His reasoning: Grand-jury proceedings are secret precisely to protect the due-process rights of people who have not been formally charged with a crime; ergo, it would violate the Constitution to stigmatize such people by broadcasting that a grand jury suspects them of serious offenses when the prosecuting authority — Fulton County district attorney Fani T. Willis — has not yet decided whether to charge them.

Kohrs essentially flouted the judge’s order, while rationalizing that she was honoring it. She told the media that the grand jury had recommended charges be brought against many people. Although she did not mention their names, she asserted that they were figures “you would recognize.” She added that those who have followed the press coverage of the probe won’t be surprised by the coming indictments: “I don’t think that there are any giant plot twists coming,” she said. She wouldn’t come out and state outright that Trump was among those who will be charged, but she related that, “It was a process where we heard his name a lot. We definitely heard a lot about former President Trump, and we definitely discussed him a lot in the room” (i.e., the examination room in which grand jurors hear evidence and deliberate).

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Just a reminder for some context: Under Georgia law, the special grand jury only makes recommendations about what charges should be brought against which people. It is now up to District Attorney Willis to decide whether to seek formal charges from regular grand juries, using the evidence uncovered by the special grand jury.

Kohrs’s media blitz is outrageous. In Georgia, grand jurors take an oath to “keep the deliberations of the grand jury secret unless called upon to give evidence thereof in some court of law of this state.” I believe this is the rule in all states, because it is foundational to criminal investigations; the obligation to maintain grand-jury secrecy is similarly reflected by Rule 6(e) of federal criminal procedure. Kohrs ran afoul of that obligation, and she cavalierly undermined Judge McBurney’s appropriately careful line-drawing between Georgia law’s grant of a public right to know the contents of a special-grand-jury report and the Constitution’s guarantees of due process.

In a bottom-line legal sense, though, Kohrs’s 15 minutes of fame will prove to be of negligible importance. Sure, defense lawyers for Trump and others will cite Kohrs’s commentary in motions to throw out any indictment if they are charged. Those motions, however, are not going to be granted. It is an oft-cited criminal-law maxim that defen

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