SPGJ - Brief of Media Intervenors
SPGJ - Brief of Media Intervenors
STATE OF GEORGIA
__________________________________________
)
IN RE 2 MAY 2022 SPECIAL PURPOSE ) No. 2022-EX-000024
GRAND JURY )
__________________________________________)
Associated Press; Bloomberg News; Cable News Network, Inc.; CMG Media Corporation and
its television station WSB-TV; Dow Jones & Company and its newspaper The Wall Street
Journal; Gannett Co., Inc. and its newspapers USA Today, the Athens Banner-Herald, The
Augusta Chronicle, and the Savannah Morning News; Gray Media Group, Inc. and its television
station WANF; The New York Times Company; Tegna Inc. and its television station WXIA-TV;
and Yahoo Inc. and its news publication Yahoo News (collectively, “Media Intervenors”)
respectfully file this brief in support of the public release of the special purpose grand jury’s final
INTRODUCTION
On the morning of Wednesday, November 4, 2020 – the day after Georgia citizens had
finished casting their votes in the 2020 Presidential Election – the focus of the nation turned to
Georgia. As poll workers continued to tabulate votes, it became clear that, by the narrowest
margins, the voting results in Georgia and a small group of other states would determine the
In the days and weeks that followed, enormous controversy and confusion descended on
the State. Without credible evidence, an array of public officials, paid advocates, and private
citizens spread allegations that voting fraud had been rampant in Georgia. The claims of fraud
were aimed with particular force at Fulton County where, for example, routine video of vote
counting at a tabulating center was mischaracterized as illegal ballot stuffing using a “suitcase”
of fake ballots. As pressure mounted in the weeks that followed, then-sitting President Donald J.
Trump made a recorded telephone call to Georgia’s Secretary of State asking for the assistance
These and many other events from the post-election time-period have raised serious
questions about whether the State’s election system was subjected to a premeditated attempt to
distort the results of the Presidential election. This question has been one of enormous public
interest not just to Georgians, but also to citizens throughout the United States. The scale and
scope of news organizations filing this brief reflect the profound public interest in this issue.1
In January 2022, at the request of District County Attorney Fani Willis, the Judges of the
Fulton County Superior Court voted to convene an investigative mechanism that has existed in
Georgia for decades – a special purpose grand jury. Like numerous other states, Georgia law
authorizes “special” grand juries to conduct detailed and patient examinations of public
controversies by giving them authority to investigate “any alleged violation of the laws of this
state or any other matter subject to investigation by grand juries as provided by law.” O.C.G.A §
15-12-100(a).
In a January 24, 2022 Order approving District Attorney Willis’ request, then-Chief
Judge Christopher Brasher stated that the authorization given the special purpose grand jury
1
In Exhibit A to this Brief, Media Intervenors have submitted a listing of links to examples of
news reports published and/or broadcast by them on the newsworthy issues relating to the special
purpose grand jury’s investigation reflecting the extensive public interest in this matter.
2
This authorization shall include the investigation of any overt acts or predicate
acts relating to the subject of the special purpose grand jury’s investigative
purpose. The special purpose grand jury, when making presentments and reports,
pursuant to O.C.G.A §§ 15-12-71 and 15-12-101, may make recommendations
concerning criminal prosecution as it shall see fit.
Armed with this authorization, the special purpose grand jury subpoenaed evidence and
witness testimony from a wide array of individuals, public officials, and government entities for
approximately seven months. Although the proceedings of the grand jury remained confidential,
legal efforts by some of the most senior officials in State and federal government – played out
By its Order issued on January 9, 2023 (the “Order”), the Court informed the public and
press that the special purpose grand jury had “issued its final report pursuant to O.C.G.A. § 15-
12-101(a).” Based upon the completion of the report and with the approval of a majority of the
Fulton County Superior Court bench, the Court dissolved the special purpose grand jury and
In the Order, the Court observed that the only remaining question concerned the
“publication” of the Report. The Court explained that the special purpose grand jury “certified
that it voted to recommend that [the Report] be published pursuant to O.C.G.A. § 15-12-80.”2
The Court noted that this “publication” statute “appears to apply to the work of special purpose
grand juries” by virtue of the incorporation provision set forth at O.C.G.A. § 15-12-102, but also
2
O.C.G.A. § 15-12-80 provides as follows: “Grand juries are authorized to recommend to the
court the publication of the whole or any part of their general presentments and to prescribe the
manner of publication. When the recommendation is made, the judge shall order the publication
as recommended. Reasonable charges therefor shall be paid out of the county treasury, upon the
certificate of the judge, as other court expenses are paid.”
3
observed that it remained “unresolved” whether “the special purpose grand jury’s final report
constitutes a presentment.”
In its Order, the Court invited argument on this issue by the District Attorney’s Office
and any consolidated media intervenors. In advance of providing argument on January 24, 2023,
the Media Intervenors offer this brief in support of their position that the Report is a court record
subject to a presumption of openness under Uniform Superior Court Rule 21, the First
Amendment to the United States Constitution and Article I, Section 1, Paragraph 5 of the
Georgia State Constitution. Media Intervenors respectfully submit the presumption of openness
that applies to the Report cannot be overcome in this matter. The public interest in the Report is
extraordinary, and there are no countervailing interests sufficient to overcome the presumption.
The Court should file the Report in the public docket and publish it pursuant to O.C.G.A. § 15-
ARGUMENT
The United States Supreme Court has repeatedly recognized that public access to the
judicial system is not only deeply ingrained in the history of our system but also is an
“indispensable” attribute of our judicial system protected by the First Amendment to the United
States Constitution. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). The
Court recognized in Richmond Newspapers that public scrutiny of the court system is essential to
its institutional well-being for numerous reasons, including because it is vital to obtaining the
4
public’s trust. “People in an open society do not demand infallibility from their institutions, but
it is difficult for them to accept what they are prohibited from observing.” 448 U.S. at 572.
In conjunction with the U.S. Supreme Court’s recognition of the protections afforded by
the First Amendment, the Georgia Supreme Court has held that the Georgia Constitution
independently requires our judicial system to operate in an open and public manner.
This court has sought to open the doors of Georgia’s courtrooms to the public and
to attract public interest in all courtroom proceedings because it is believed that
open courtrooms are a sine qua non of an effective and respected judicial system
which, in turn, is one of the principal cornerstones of a free society.
R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 576(1), 292 S.E.2d 815, 817(1) (1982). Indeed, Page
makes clear that in the criminal context Georgia law is “more protective of the concept of open
Side by side with preserving open court proceedings, the Georgia Supreme Court has
embraced the importance of keeping court records available and accessible to the public. The
United States Supreme Court recognized constitutional rights of access to court records in a
series of decisions in the late 1970’s and 1980s. See generally Press-Enterprise Co. v. Superior
Court, 478 U.S. 1 (1986) (“Press-Enterprise II”); Press-Enterprise Co. v. Superior Court, 464
U.S. 501 (1984) (“Press-Enterprise I”); Nixon v. Warner Communications, Inc., 435 U.S. 589,
597-98 (1978) (“It is clear that the courts of this country recognize a general right to inspect and
copy public records and documents, including judicial records and documents” ); In re
Application of CBS, Inc., 828 F.2d 958, 959 (2d Cir. 1987) (characterizing existence of right of
Contemporaneously with the Unites States Supreme Court’s decisions, the Georgia
Supreme Court embraced the importance of keeping court records accessible to public inspection
by enacting Uniform Superior Court Rule 21, which creates a presumptive right to inspect all
5
court records, and by infusing the Rule with substance in a series of forceful decisions rejecting
efforts to seal court files. Most notably, in Atlanta Journal & Atlanta Constitution v. Long, the
Georgia Supreme Court reversed a trial court order sealing a civil case file after the settlement of
a lawsuit claiming sexual abuse by the Catholic Diocese of Savannah. The Court found that “the
privacy interests of the appellees in the pre-judgment records of this civil suit do not clearly
outweigh the public interest in open access to those records.” 258 Ga. 410, 411, 369 S.E.2d 755,
760 (1988); see also In re The Atlanta Journal-Constitution, 271 Ga. 436, 438, 519 S.E.2d 909,
912 (1999) (“[J]ustice faces its greatest threat when courts dispense it secretly.” (quoting Long,
Of course, with respect to grand jury proceedings, the Georgia Supreme Court has always
acknowledged the calculation about access to court records must be approached with special
care. The Court has frequently noted that secrecy plays a very important role in connection with
the investigations conducted by these judicial bodies. See, e.g., In re Gwinnett County Grand
Jury, 284 Ga. 510, 512, 668 S.E.2d 682, 684 (2008) (“There is no doubt that the preservation of
re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 333 S.E.2d 389 (1985))). However,
decisions from the Georgia appellate courts have consistently emphasized that the outcome of
grand jury proceedings must be shared with the public to protect against public distrust of “star
In commenting on the importance of the indictment being returned in open court, the
The judge is the court for the reception of indictments only when he is presiding
in open court. There must be a judge presiding, the clerk must be present, and the
place of the reception of the indictment must be one where the court is being held
open to the public. Cadle v. State, 101 Ga. App. 175, 180, 113 S.E.2d 180 (1960).
6
“It is a fundamental part of our judicial system that the general public be
permitted to witness court proceedings sufficiently to guarantee that there may
never be practiced in this State secret or star-chamber court proceedings, the
deliberations of the juries alone excepted.” Zugar v. State, 194 Ga. 285, 289-290,
21 S.E.2d 647 (1942). “It is not enough to know that in this State there is hardly a
chance that bogus indictments for personal spite will be filed in our courts. The
preservation of the honor and purity of the courts, the confidence and respect of
the public in those courts, and the good name of the citizens must not be left to
chance. . . .” Zugar, supra at 291.
State v. Byrd, 197 Ga. App. 661, 399 S.E.2d 267, 268-69 (1990); see also Zugar v. State, 194 Ga.
285, 289-290, 21 S.E.2d 647 (1942) (requiring openness in return of indictment by grand jury:
“public officials are made conscious of the duty to faithfully perform official acts when they are
acting in the presence of the general public; and this fact causes the public to have confidence in
the officials, and hence confidence in the governmental departments where such officials serve”).
More recently, in Olsen v. State, 302 Ga. 288, 806 S.E.2d 556 (2017), the Georgia
Supreme Court noted that the secrecy afforded to Georgia grand juries has been curtailed at
times by the General Assembly and now is focused most specifically on “the deliberations” of
grand juries and less on its evidentiary phase. The Court remarked that “[n]otably, the oath of
secrecy no longer extends to the State’s attorney, and even the grand jurors’ oath encompasses
only deliberations and not all things occurring in the grand jury room.” Id. at 290-91. The Court
explained that they presumed this was the intent of the General Assembly and therefore
“decline[d] to extend the requirement of secrecy applicable to grand jury proceedings in Georgia
It is in this legal context that Georgia’s precedent on grand jury presentments and reports
must be considered. When examined in light of the evolution of Georgia law on public access to
court records, the precedent demonstrates the Report is subject to a presumption of public access
7
B. Georgia’s Precedent on Grand Jury Reports and Presentments Compels a
Finding that the Report is a Court Record and, therefore, Presumptively
Public under Rule 21.
Investigative grand juries have played an important role in Georgia’s judicial history. As
our Supreme Court has observed since their roots in colonial times, “[t]hrough presentments and
other customary reports, the American grand jury in effect [has] enjoyed a roving commission to
ferret out official malfeasance or self-dealing of any sort.” In re Gwinnett County Grand Jury,
284 Ga. at 512 (quoting Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 85
(1998)). “There is a consensus among courts and commentators that, historically, common law
grand juries performed a public reporting function by identifying official misconduct without
observed, “the reporting function can be viewed as a device that forces government to police
While acknowledging that the public reporting function of investigative grand juries
provides a powerful tool to expose wrongdoing, Georgia’s appellate courts have recognized that
investigative grand juries should be supervised to prevent grand juries from exceeding the scope
of their legal authorization. As the Court of Appeals explained in In re Floyd County Grand
Jury Presentments for May Term 1996, 225 Ga. App. 705, 484 S.E.2d 769 (1997), the
responsibility of a supervising judge is to make sure the grand jury stays within the scope of its
statutory authority.
8
Since the grand jury proceedings are secret, OCGA § 15-12-73, it is possible that
a grand jury as a group of lay-persons can exceed the scope of their authority and,
because of their membership, become involved in politics and in local feuds. It is
for this reason that a superior court judge supervises the grand jury and has the
duty to scrutinize, receive, and order filed the presentment of the grand jury.
“politics and local feuds,” the Court of Appeals has also emphasized that the supervising judge
has no authority to expunge or redact a grand jury’s report so long as the grand jury is acting
within its mandate. In 2004, the Court of Appeals clarified the limited role of a supervising court
that was asked to expunge a grand jury presentment regarding Vernon Jones, the CEO of DeKalb
County. In In re July-August, 2003 DeKalb County Grand Jury, 265 Ga. App. 870, 595 S.E.2d
674 (2004), the Court of Appeals conducted a detailed review of the history of appellate
decisions addressing grand jury reports over more than 40 years and emphasized that the role of
the supervising courts was confined to expunging statements based on “ultra vires acts of the
grand jury.” Id. at 873. The Court of Appeals rejected Jones’ attempts to read Georgia
9
Based on its detailed review of Georgia precedent, and after the limited redaction of
certain ultra vires content, the Court of Appeals affirmed the supervising court’s decision to file
a grand jury’s report that addressed the conduct of Jones in his official capacity.
Georgia’s history of decisions requiring the public filing and publication of grand jury
reports was significantly reinforced by the Georgia Supreme Court’s 2008 decision in In re
Gwinnett County Grand Jury, 284 Ga. at 512. In Gwinnett County Grand Jury, the Georgia
Supreme Court had its first opportunity to address the issue of grand jury records and reports in
the aftermath of the United States’ Supreme Court’s series of decisions recognizing the public’s
constitutional right to court records under the First Amendment.5 The decision also followed the
Georgia Supreme Court’s own precedent emphasizing its perspective that public court records
“protect[] litigants both present and future” because “[o]ur system abhors star chamber
Not surprisingly, rather than looking to dated precedent, the Supreme Court’s decision in
Gwinnett County Grand Jury squarely addressed the issue of access to grand jury records and
reports under the modern constitutional standards that inform Uniform Superior Court Rule 21.
In determining whether Gwinnett County could obtain the records of a grand jury that examined
the dissolution of the County’s Office of Internal Audits, the Court explained,
Hensley, 184 Ga. App. 625, 362 S.E.2d 432 (1987); In re Gwinnett County Grand Jury
Proceedings, 180 Ga. App. 241, 348 S.E.2d 757 (1986); Harris v. Edmonds, 119 Ga. App. 305,
166 S.E.2d 909 (1969); Kelley v. Tanksley, 105 Ga. App. 65, 123 S.E.2d 462 (1961); and 1996
Op. Atty. Gen. No. U96-15.
5
See generally supra at p. 4-5 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)
(“Press-Enterprise II”); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (“Press-
Enterprise I”); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978)).
10
[Uniform Superior Court Rule 21], adopted by this Court and the Council of
Superior Court Judges, states that “[a]ll court records are public and are to be
available for public inspection unless public access is limited by law or by the
procedure set forth below.” The rule embodies the right of access to court records
which the public and press in Georgia have traditionally enjoyed.
Id. at 511. The Court found that the presumption of openness applies to judicial records to which
the public and press have traditionally enjoyed access “when a judicial document is filed.” Id.
(quoting Long, 258 Ga. 410). The Court noted it had extended this rule even to “an official court
reporter’s tape of remarks made by a judge in open court.” Id. (citing Green v. Drinnon, Inc.,
Guided by this standard, the Court ultimately determined that “evidence and testimony
presented to a grand jury” as part of its investigation were not court records to which the public
had a “presumptive right of access” because “the press and public have not traditionally enjoyed
access to such material due to the preservation of the secrecy of grand jury proceedings.” Id. at
513 (citation omitted). In contrast, however, the Court held the presentment made by a grand
jury “is a court record under Uniform Superior Court Rule 21 that is available for public
inspection unless public access is otherwise limited by law or by [Rule 21].” Id. at 513-14.
The Gwinnett County Grand Jury decision demonstrates the Report should be
presumptively public. It has been filed with the Court by virtue of its delivery to the supervising
judge. It is a judicial record that memorializes the determinations of a properly convened special
6
See generally supra at p. 5-6 (citing Atlanta Journal & Atlanta Constitution v. Long, 258 Ga.
410, 411 (1988)).
7
The Court subsequently elaborated on the presumption of public access to all judicial
documents filed with the court in Undisclosed LLC v. State, 302 Ga. 418, 431, 807 S.E.2d 393,
403 (2017) (“Materials admitted into evidence, that call for court action, or play a central role in
the adjudicative process are part of the judicial record, so long such materials are on file with the
court.”).
11
purpose grand jury with a broad mandate. There is no basis to contend the special purpose grand
jury acted in an ultra vires manner. Under such circumstances, grand jury reports are not just the
type of judicial record that are “traditionally” available to the public; they are the type of judicial
Just as with the presentment in Gwinnett County Grand Jury, the Report should be made
public.9
8
An example of a Superior Court Order directing a county clerk to publish a Special Purpose
Grand Jury Final Report under O.C.G.A. § 15-12-80 can be found at Exhibit B. The exhibit is an
Order issued by DeKalb Superior Court Judge Gregory Adams requiring the publication of the
“Final Report” of a Special Purpose Grand Jury impaneled on January 20, 2012, in connection
with controversies relating to the DeKalb County Department of Watershed Management.
Pursuant to the Order, the final report was published in DeKalb County’s legal organ, The
Champion Newspaper and remains online: http://thechampionnewspaper.com/wp-
content/uploads/2013/08/000SpecialPurposeGrandJuryFinalReport.pdf. A true and correct copy
of the final report is attached as Exhibit C. CEO Burrell Ellis was subsequently prosecuted after
the publication of the final report, but no challenge to the publication of the final report was
raised in his appeal. See Ellis v. State, 300 Ga. 371, 794 S.E.2d 601 (2016).
9
The presumption in Georgia law that grand jury reports will be made public is consistent with
the law of other states. See generally Miami Herald Publishing Co. v. Marko, 352 So.2d 518,
523 (Fla. 1977) (affirming release of grand jury report and noting “[t]he benefits to be derived
from this extraordinary exercise in citizen participation would be severely limited if the fruits of
that activity were not available to the public on whose behalf it is undertaken.”); In re Final
Report of the 29th Statewide Grand Jury, 343 So.3d 584 (Fla. Dist. Ct. App. 2022) (ordering
release of all but two paragraphs of grand jury report following Marjory Stoneman Douglas
school shooting), reh’ring denied, 343 So.3d 600 (Fla. Dist. Ct. App. 2022), review denied sub
nom. D.K. v. Final Report of 20th Statewide Grand Jury, No. SC22-983, 2022 WL 3573084 (Fla.
Aug. 19, 2022, and review denied sub nom. Murray v. Final Report of 20th Statewide Grand
Jury, No. SC22-1108, 2022 9801736 (Fla. Oct. 17, 2022); Matter of Report of Washoe Cnty.
Grand Jury, 95 Nev. 121, 128, 590 P.2d 622 (1979) (“[T]he report was generally issued in the
legitimate community interest, and [the interested target], with one exception, has not
demonstrated that justice requires further expungement.”) People v. Super. Ct., 13 Cal.3d 430,
434, 531 P.2d 761 (1975) (holding that courts may only seal portions of grand jury reports that
“extend beyond the legal boundaries of the grand jury’s broad reportorial power”).
12
C. Our Courts and the General Assembly Have Not Attempted to Distinguish
“Presentments” from Grand Jury “Reports,” so Construing O.C.G.A. § 15-
12-80 as Applicable to the Report is Appropriate and Required by the
Federal and State Constitution.
In its Order, the Court noted it was “unresolved” whether the “special purpose grand
jury’s final report constitutes a presentment” subject to the publication requirements of O.C.G.A.
§ 15-12-80. Order at 2. However, the term “presentment” and “report” have been used
interchangeably for decades by the Georgia judiciary, the General Assembly, and courts in other
jurisdictions. There is no basis to find that the Report is outside the scope of the mandatory
initiated by the grand jury based on its own knowledge, not at the request of prosecutors. 4 W.
initiate a criminal prosecution is obsolete in Georgia and in most other jurisdictions. Instead,
Georgia employs the term “special presentment” to identify a charging instrument initiated by
the grand jury that effectively functions as an indictment. See O.C.G.A § 15-12-74(b). “In this
state the difference between an indictment and a special presentment has been abolished, with
respect to the requirements of law in regard to trials under them, a mere technical distinction
presentment it is preferred by the grand jury without a prosecutor.” Carmichael v. State, 228 Ga.
Based on this development, the modern legal practice is to refer interchangeably to the
“presentment” or “general presentment” when it is not for the purpose of initiating criminal
13
proceedings. Regardless of the legal vernacular used, each term refers to a document that is in
substance a report. This is true in Georgia. See, e.g., In re Presentments of Lowndes County
Grand Jury, 166 Ga. App. 258, 304 S.E.2d 423 (1983) (referring interchangeably to
“presentments” against members of a city police department as “reports”); Kelley, 105 Ga. App.
at 66 (“The report of the grand jury sought to be expunged from the records in the instant case
was not a special presentment or true bill of indictment charging any individual with the
violation of the penal laws of this State. It was in the nature of a general presentment or
recommendation in which the grand jury took note of an unsolved theft involving county funds
which occurred on county property”). The equivalence of the words “general presentment,”
“presentment” and “report” has also been noted in other jurisdictions. See, e.g., In re: Final
Report of the 20th Statewide Grand Jury, 343 So.3d at 588 (“We will refer to the statewide grand
a “report” when issued by the grand jury, there is no basis to contend that the publication
requirement contained in O.C.G.A. § 15-12-80 is not applicable to special purpose grand juries.
10
The Georgia General Assembly amended O.C.G.A. § 15-12-71 in 2016 to permit local grand
juries to examine controversies relating to law enforcement’s use of deadly force. In amending
the law, the General Assembly also referred to “presentments” and “reports” interchangeably as
documents that could be issued by the grand jury while bringing charges and stated that both
would be subject to O.C.G.A. § 15-12-80. See Georgia Laws 2016, Act 350, § 1, (eff. July 1,
2016) (adding subsection (e)(1) to O.C.G.A. § 15-12-71: “If the grand jury conducts a review [in
connection with a peace officer’s use of deadly force], and the grand jury does not request that
the district attorney create a bill of indictment or special presentment, the grand jury shall
prepare a report or issue a general presentment based upon its inspection, and any such report or
presentment shall be subject to publication as provided for in Code Section 15-12-80”).
14
The Court correctly observed in its Order that O.C.G.A. § 15-12-10211 incorporates the
statutory procedures of regular grand juries into the operation of special purpose grand juries
unless the procedures of the special grand jury are “otherwise provided” for in the authorizing
statute. There is no conflicting provision that “otherwise” speaks to the publication or secrecy
of special purpose grand jury reports. Accordingly, O.C.G.A. § 15-12-80 applies to the
Report.12
This result is particularly clear in the aftermath of the Georgia Supreme Court’s decision
in Olsen v. State, 302 Ga. 288 (2017). In Olsen, the Georgia Supreme Court emphasized it
would not “extend the requirement of secrecy applicable to grand jury proceedings in Georgia”
unless there was a clear mandate “imposed by statute.” Id. The General Assembly could easily
have required by statute that the reports of a special purpose grand jury be maintained by the
supervising court in secret, but they imposed no such rule in the enabling legislation.
Various courts have recognized that the right of access to court records is grounded not
just in the common law, but also in constitutional principles protecting the public’s right of
access to information about government. See, e.g., In re Providence Journal Co., 293 F.3d 1,
10-13 (1st Cir. 2002) (“Apart from the prerogatives attendant to the common-law right of access
to judicial records, the public and the press enjoy a constitutional right of access to criminal
proceedings under the First and Fourteenth Amendments.”); Phoenix Newspapers v. U.S. Dist.
Court, 156 F.3d 940, 948 (9th Cir. 1998); United States v. Antar, 38 F.3d 1348, 1359-60 (3d Cir.
11
O.C.G.A. § 15-12-102 states that, “[e]xcept as otherwise provided by this part [governing
special purpose grand juries], Part 1 [governing regular grand juries] of this article shall apply to
the grand juries authorized by this part.”
12
See also Exhibit B (Order of DeKalb County Superior Court Chief Judge requiring publication
of a special purpose grand jury’s “Final Report” under O.C.G.A. § 15-12-80).
15
1994); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 505 (1st Cir. 1989); In re Search
Warrant, 855 F.2d 569, 573 (8th Cir. 1988). An interpretation of the mandatory publication
requirement set forth in O.C.G.A. § 15-12-80 that allowed supervising courts to set the
requirement aside without a constitutionally meaningful showing of harm would violate not just
the common law, but also the First Amendment to the U.S. Constitution and Article I, Section 1,
Paragraph 5 of the Georgia State Constitution (protecting the right of “every person” to “publish
II. NEITHER THE STATE NOR ANY OTHER PARTY CAN MAKE A
COMPELLING CASE THAT EXPUNGEMENT OR SEALING IS WARRANTED
HERE.
The presumption of openness that applies to the Report cannot be overcome. Georgia
law provides two paths through which the State or an interested party may seek to restrict all or
portions of the Report in extraordinary circumstances: (1) though expungement of ultra vires
content contained in the Report; (2) through a motion to seal pursuant to Uniform Superior Court
As set forth above, under Georgia law courts have historically expunged portions of a
report or presentment deemed “ultra vires,” i.e., containing “statements” that arise from
investigative activity outside the scope of the grand jury’s mandate. In this case, the special
purpose grand jury’s mandate was extraordinarily broad. The special purpose grand jury was
attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.”
January 20, 2022 Letter of District Attorney Fani Willis to Chief Judge Christopher Brasher; see
16
also January 24, 2022 Order Approving Request for Special Purpose Grand Jury Pursuant to
O.C.G.A. § 15-12-100, et seq. (“The special purpose grand jury shall be authorized to investigate
any and all facts and circumstances relating directly or indirectly to alleged violations of the laws
of the State of Georgia, as set forth in the request of the District Attorney referenced herein
above.”).
Pursuant to O.C.G.A. § 15-12-101(a), the special purpose grand jury has been
“supervise[d] and “assist[ed]” throughout its investigation. Various motions relating to the
proper scope of testimony and evidence have been heard. There is simply no indication that
anything in the Report exceeded the scope of the special purpose grand jury’s authority in a
B. There is No Basis to Seal Any Portion of the Report Pursuant to Rule 21.
In addition, as noted above, the Report is a court record, so it is subject to sealing only
under the demanding standards of Uniform Superior Court Rule 21. See generally In re
The Georgia Supreme Court has articulated the standard for sealing as requiring a finding
that the movants’ privacy clearly outweighs the public interest in disclosure. Long, 258 Ga. at
413. The burden of demonstrating that court records should be sealed is on the party seeking the
sealing, and the Court must make factual findings on the record supporting the sealing order. Id.;
see also In re Atlanta Journal-Constitution, 271 Ga. at 438 (“[I]t is not sufficient for the trial
court to forego making findings of fact and simply state that the public’s interest in access to
court records is clearly outweighed by potential harm to the parties’ privacy”). The burden is
intended to require public access in all cases except those involving a “clear necessity.” Long,
258 Ga. at 413, 369 S.E.2d at 758; see also Merchant Law Firm, P.C. v. Emerson, 301 Ga. 609,
17
613, 800 S.E.2d 557 (2017); see also Long, 258 Ga. at 413 (“In designing USCR 21, this court
and the council of superior court judges . . . incorporated the presumption that the public will
This standard is and is intended to be a difficult one to satisfy. Indeed, in enforcing the
State’s commitment to open courtrooms and court records, Georgia courts have consistently
emphasized, for example, that embarrassment and reputational harm are not sufficient interests to
justify sealing. See, e.g., In re Atlanta Journal-Constitution, 271 Ga. at 438 (reversing trial court
order sealing probate case involving claim by illegitimate child seeking portion of the estate of
former owner of The Atlanta Falcons: “[C]ivil lawsuits quite often cause litigants to experience
an invasion of privacy and resulting embarrassment, yet that fact alone does not permit trial
courts to routinely seal court records”); Long, 258 Ga. at 413 (reversing trial court order sealing
case file and holding that the privacy interests of Catholic Diocese of Savannah “do not clearly
There is no basis for sealing here. This investigation has been a matter of profound
public interest that goes to the heart of the nation’s democratic forms of government. Much of
the matters before the special purpose grand jury are already public knowledge through related
federal and state court proceedings and Congressional hearings. There is quite simply no “clear
CONCLUSION
The Georgia Supreme Court has explicitly stated that it would “decline to extend the
requirement of secrecy applicable to grand jury proceedings beyond that which is currently
imposed by statute.” Olsen, 302 Ga. at 291. There is no basis to do so here. The Media
18
Intervenors respectfully request that the Report be publicly filed and published as the special
Respectfully submitted,
Thomas M. Clyde
Georgia State Bar No.: 170955
[email protected]
Lesli N. Gaither
Georgia State Bar No.: 621501
[email protected]
Suite 2800, 1100 Peachtree Street, N.E.
Atlanta, Georgia 30309
Phone: (404) 815-6500
19
EXHIBIT A
APPENDIX
1
Date Headline Link
8/15/2022 Lindsey Graham ordered to testify in Fulton probe of bid to overturn https://www.onlineathens.com/story/news/2022/08/15/lindsey-graham-must-testify-georgia-
Georgia election grand-jury-probe-election
8/15/2022 Rudy Giuliani told by prosecutors he is a target in Georgia 2020 https://www.cnn.com/2022/08/15/politics/rudy-giuliani-georgia-presidential-election-
presidential election probe probe/index.html
8/16/2022 Trump legal adviser ordered to testify in Ga. election probe https://apnews.com/article/2022-midterm-elections-colorado-donald-trump-georgia-atlanta
8/17/2022 Rudy Giuliani testifies before Fulton grand jury on alleged 2020 https://www.atlantanewsfirst.com/2022/08/17/rudy-giuliani-appearing-before-fulton-grand-jury-
election tampering alleged-2020-election-tampering/
8/19/2022 Graham Ordered to Appear Before Atlanta Grand Jury Investigating https://www.nytimes.com/2022/08/19/us/lindsey-graham-atlanta-grand-jury-trump.html
Trump
8/29/2022 Georgia’s Kemp Must Testify in Trump Election Probe, Judge Says https://www.bloomberg.com/news/articles/2022-08-29/georgia-s-kemp-must-testify-in-trump-
election-probe-judge-says
9/29/2022 Trump attorney and adviser testified before Georgia grand jury https://www.cnn.com/2022/09/29/politics/boris-epshteyn-testimony-georgia-grand-jury-election-
investigating election interference interference-trump/index.html
10/4/2022 Georgia GOP bankrolls lawyers for 'fake' Trump electors in Fulton https://news.yahoo.com/georgia-da-gop-bankrolling-lawyers-for-fake-trump-electors-rife-with-
County DA probe serious-ethical-problems-191434263.html
10/27/2022 Mark Meadows ordered by court to testify in Georgia 2020 election https://www.cnn.com/2022/10/26/politics/mark-meadows-georgia-election-grand-
meddling probe jury/index.html
11/1/2022 Supreme Court rejects Lindsey Graham’s request to block Georgia https://www.cnn.com/2022/11/01/politics/lindsey-graham-supreme-court/index.html
grand jury subpoena
11/1/2022 US Supreme Court Allows Election Grand Jury Questioning of https://www.bloomberg.com/news/articles/2022-11-01/us-supreme-court-allows-election-grand-
Lindsey Graham jury-questioning-of-lindsey-graham
11/9/2022 Judge orders Gingrich to testify in Georgia election probe https://apnews.com/article/donald-trump-georgia-atlanta
11/15/2022 Georgia Gov. Brian Kemp appears before grand jury on 2020 election https://www.cnn.com/2022/11/15/politics/brian-kemp-georgia-grand-jury-2020-
interference election/index.html
11/15/2022 Michael Flynn ordered to testify in Atlanta grand jury probe into https://www.cnn.com/2022/11/15/politics/michael-flynn-grand-jury/index.html
Trump’s election subversion
11/15/2022 Georgia Gov. Brian Kemp appears before Atlanta jury in election https://www.usatoday.com/story/news/politics/2022/11/15/georgia-governor-brian-kemp-
probe testifies-grand-jury
11/16/2022 Former White House aid Cassidy Hutchinson testifies before Georgia https://www.cnn.com/2022/11/16/politics/cassidy-hutchinson-testifies-georgia-grand-
grand jury jury/index.html
11/16/2022 Georgia DA floats immunity deals for fake electors as investigation https://www.cnn.com/2022/11/16/politics/fulton-county-da-georgia-fake-electors-investigation-
into Trump hits roadblock fake-electors-roadblock-immunity/index.html
11/22/2022 Lindsey Graham testifies before Georgia grand jury investigating https://www.cnn.com/2022/11/22/politics/lindsey-graham-fulton-county-grand-jury-2020-
2020 election aftermath election/index.html
11/29/2022 Mark Meadows Ordered to Testify on Trump by South Carolina’s Top https://www.bloomberg.com/news/articles/2022-11-29/meadows-ordered-to-testify-on-trump-
Court by-south-carolina-top-court
12/6/2022 Florida appeals court: No delay for Michael Flynn in Fulton County https://www.11alive.com/article/news/politics/michael-flynn-fulton-county-trump-grand-jury/
Trump grand jury testimony
12/12/2022 Trump Special Counsel Subpoenas Official Asked to Find Votes (1) https://news.bloomberglaw.com/white-collar-and-criminal-law/trump-special-counsel-
subpoenas-official-asked-to-find-votes-1
2
Date Headline Link
12/17/2022 Georgia grand jury investigating Trump election interference is https://www.cnn.com/2022/12/17/politics/georgia-grand-jury-trump-2020-election/index.html
winding down and has begun writing final report
12/24/2022 Georgia special grand jury wraps up probe of Trump, allies https://www.usatoday.com/story/news/politics/2022/12/24/trump-special-grand-jury-georgia-
charges-investigation
12/27/2022 Georgia special grand jury wraps up probe of Trump, allies https://www.atlantanewsfirst.com/2022/12/27/georgia-special-grand-jury-wraps-up-probe-
trump-allies/
1/9/2023 Fulton special grand jury completes Trump investigation https://www.ajc.com/politics/breaking-fulton-special-grand-jury-completes-trump-investigation
1/9/2023 Georgia grand jury investigating Trump and 2020 election aftermath https://www.cnn.com/2023/01/09/politics/fulton-county-grand-jury-trump-election/index.html
completes its work
1/9/2023 Fulton County grand jury submits final report on Trump’s alleged https://abcnews.go.com/Politics/fulton-county-grand-jury-submits-final-report-donald/story
interference in 2020 election
1/9/2023 Special Grand Jury in Georgia Trump Inquiry Concludes Its https://www.nytimes.com/2023/01/09/us/trump-georgia-election-grand-jury.html
Investigation
1/9/2023 Fulton County grand jury submits final report on Trump’s alleged https://news.yahoo.com/fulton-county-grand-jury-submits-153810676.html
interference in 2020 election
1/9/2023 Fulton County grand jury submits final report on Donald Trump’s https://www.wsjm.com/fulton-county-grand-jury-submits-final-report-on-donald-trumps-
alleged interference in 2020 election alleged-interference-in-2020-election/
1/9/2023 Fulton County special grand jury ends its Trump investigation. What https://www.11alive.com/article/news/politics/fulton-county-grand-jury-ends-trump-
happens next? investigation
1/9/2023 Georgia grand jury wraps up Trump 2020 election probe https://news.yahoo.com/georgia-grand-jury-wraps-trump
1/9/2023 Georgia grand jury completes report on Trump election interference https://news.yahoo.com/georgia-grand-jury-completes-report
probe
1/9/2023 Special Grand Jury in Georgia Trump Inquiry Concludes Its https://www.nytimes.com/2023/01/09/us/trump-georgia-election-grand-jury.html
Investigation
1/9/2023 Georgia grand jury ends probe of Trump, 2020 decision https://www.atlantanewsfirst.com/2023/01/09/special-grand-jury-probing-trump-allies-georgia-
finishes-work/
1/9/2023 Fulton County grand jury wraps up its investigation into Donald https://www.atlantanewsfirst.com/2023/01/09/fulton-county-grand-jury-wraps-up-its-work-
Trump donald-trump/
1/9/2023 Georgia Special Grand Jury Completes Trump Investigation https://www.wsj.com/articles/georgia-special-grand-jury-completes-donald-trump-investigation
1/9/2023 Georgia grand jury investigating Trump and 2020 election aftermath https://www.cnn.com/2023/01/09/politics/fulton-county-grand-jury-trump-election/index.html
completes its work
1/9/2023 Georgia Grand Jury Investigating Trump Submits Recommendations, https://www.bloomberg.com/georgia-grand-jury-investigating-trump-submits-recommendations-
Disbands and-disbands
1/9/2023 All eyes on Georgia after grand jury wraps work on Donald Trump https://www.usatoday.com/story/news/politics/2023/01/09/trump-georgia-grand-jury-whats-
investigation next
1/9/2023 Georgia grand jury completes work in Donald Trump probe tied to https://www.usatoday.com/story/news/politics/2023/01/09/georgia-grand-jury-donald-trump-
2020 election probe
1/9/2023 Charging decision on Trump now loom large in Georgia after grand https://www.usatoday.com/story/news/politics/2023/01/09/donald-trump-grand-jury-georgia-
jury completes its work decisions-loom
3
Date Headline Link
1/9/2023 Grand jury in Georgia delivers report on Trump, charges could come https://news.yahoo.com/grand-jury-in-georgia-delivers-report-on-trump-charges-could-come-in-
in next few months next-few-months-173112072.html
1/10/2023 Georgia grand jury completes Trump election investigation; what https://news.yahoo.com/georgia-grand-jury-completes-trump
happens now?
1/18/2023 Fulton County Trump probe: Prosecutors have final report as court https://www.11alive.com/article/news/politics/fulton-county-trump-probe-final-report-with-
hearing nears prosecutors-hearing-nears
1/20/2023 Fulton County prosecutors finalize report in Trump probe https://www.atlantanewsfirst.com/2023/01/20/fulton-county-prosecutors-finalize-report-trump-
probe/
4
EXHIBIT B
/
/
I
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
IN RE SPECIAL PURPOSE )
GRAND JURY )
) ADMINISTRATIVE ORDER NO. 13CV1024
)
)
A Special Purpose Grand Jury was impaneled on January 20, 2012 pursuant to
O.C.G.A. § 15-12-100 to investigate the facts and circumstances surrounding the bidding,
awarding and management of contracts, as well as the policies and procedures of, and any
payments made under and for any contracts by, the DeKalb County Department of
Watershed Management during the period of January 1,2002 through December 31,
2010.
On August 15,2013, Presiding Judge Mark Anthony Scott delivered a copy of the
Special Purpose Grand Jury’s Final Report to Chief Judge Gregory A. Adams. The Final
convened a meeting of the Superior Court Judges on August 19, 2013 and reported to
them the Presiding Judge’s recommendation that the Grand Jury be dissolved. A
majority of the Superior Court Judges at the meeting voted to accept the Final Report, file
the Final Report and dissolve the Special Purpose Grand Jury.
»
Accordingly, the Special Grand Jur}’ is hereby dissolved instanter.
Page 1 of 2
The Final Report, having been presented, it is hereby ordered that the same be
filed with the Clerk of this Court and spread among the minutes thereof.
It is also ordered that the Final Report be published pursuant to O.C.G.A. § 15-12-
80 as legal notice in the official legal organ of the county. The Champion Newspaper, at
least once with the costs to be paid from the general funds of DeKalb County.
Cl ’ 'A
Va
s?.
Page 2 of2
EXHIBIT C
CERTIFICATE OF SERVICE
This is to certify that the undersigned has this day served a true and correct copy of the
Fani T. Willis
Will Wooten
District Attorney’s Office
136 Pryor Street SW, 3rd Floor
Atlanta, Georgia 30303
[email protected]
[email protected]
________________________