What indictments did (and didn't) come from the special purpose grand jury's report?

The full final report of a special purpose grand jury that investigated efforts to overturn Georgia's 2020 election paints an insightful picture about how prosecutors arrived at a 19-person racketeering indictment that includes former President Donald Trump.

Last week, a Fulton County judge unsealed the panel's report that included recommended charges and defendants for Fulton County District Attorney Fani Willis to pursue, as well as votes on the non-binding suggestions and any footnotes about juror stances.

That SPGJ report included the opinion that 39 people should face nearly 160 counts of violating more than a dozen state laws, including current South Carolina U.S. Sen. Lindsey Graham; former Georgia U.S. Sens. Kelly Loeffler and David Perdue; and others who ultimately were not included in last month's sweeping 98-page racketeering indictment.

Under Georgia law, the special grand jury was not allowed to seek indictments, but instead spent roughly eight months subpoenaing documents and hearing testimony from more than 70 witnesses in a fact-finding posture that would guide Willis' later presentation to a regular grand jury.

Roughly two-thirds of the 135 counts listed in the final indictment are rooted in the SPGJ's recommendations in some capacity, but the DA's case against Trump and 18 others features a broader range of charges against a narrower list of defendants.

Tracing the SPGJ's input into the final racketeering product

The brief final report of the special purpose grand jury only lists broad categories of activities they felt should merit further investigation by the district attorney's office, any relevant statutes, and the jury's vote, so it's difficult to directly draw a line between deliberations there and what prosecutors ultimately sought to charge.

Georgia's Racketeer Influenced and Corrupt Organizations Act, historically used to go after gangs, the mafia and other more obvious criminal enterprises, is the umbrella under which both the special panel and the final prosecution rests. Georgia's RICO law is broader than federal RICO law, and centers around a specific list of crimes also known as "predicate acts" that includes acts like kidnapping, prostitution and homicide, but also things like perjury, witness intimidation and forgery that we see in this election interference case.

The special grand jury report recommended the DA explore racketeering charges against 38 people without listing any specific predicate acts or why other than it being "in respect to the national effort to overturn the 2020 presidential election, focused on efforts in Georgia, Arizona, Wisconsin, Michigan, Pennsylvania, and the District of Columbia."

This includes eye-popping names like Graham, Perdue and Loeffler; former state Sen. William Ligon, who led hearings full of falsehoods about Georgia elections; libel lawyer Lin Wood who promoted conspiracies about voting and filed several failed lawsuits against the state; former National Security Advisor Mike Flynn; and two Georgia-based attorneys Alex Kaufman and Kurt Hilbert who were involved with Trump's post-election legal challenges.

In all, a majority of the SPGJ voted on recommending RICO charges against 28 of the 39 people listed in their report and were evenly divided on 10 others (all alternate electors), while only 18 people were actually indicted under the act or face any charges at all. Dallas attorney Jacki Pick, who presented false claims about vote counting at State Farm Arena in Fulton County to a legislative hearing, was not listed at all in the RICO section, and Trump 2020 campaign Election Day operations director Mike Roman is the only one not named in the special investigative jury's final report that is under indictment. 

Much like the indictment crafts a narrative of post-election activities — both legal and illegal — into several "buckets," the investigative panel's report loosely separates recommendations into seven categories of actions worth further investigation. Where the SPGJ report is broad and generic, the DA's indictments are granular and specific, though by comparing the two documents we can see where further investigation, prosecutorial discretion and the potential for political and legal fights might have helped craft the final charges.

Trump-Raffensperger call

The first major category mentioned is the infamous call between Trump and Republican Secretary of State Brad Raffensperger, where among other things Trump tried to coerce Raffensperger to "find" votes that would overturn the election. The SPGJ jurors recommended Trump be charged with six violations for that call, including influencing witnesses, solicitation of false official certificates or writings, intentional interference with performance of election duties and criminal solicitation to commit election fraud.

But only their recommended charge of false statements and writings stemming from that call was included in the indictment, with prosecutors adding a charge of "solicitation of violation of oath by public officer" not explored by the special jury's report.

The Trump call further illustrates where prosecutors took a different tack from the initial recommendations, namely charging former White House Chief of Staff Mark Meadows in connection with his role in organizing and participating in the call. A federal judge ruled late last week that Meadows' actions were not part of his official job duties for the narrow purpose of determining if his case could be heard in federal court.

Likewise, attorney Cleta Mitchell, who was on the call and aided with the Trump campaign's post-election litigation in Georgia, was listed with the same six recommended charges as Trump. Mitchell is not one of the 19 that face charges.

In fact, roughly two-thirds of the 158 counts laid out in the special purpose grand jury report recommendations were not included by the Fulton County DA's office in the final racketeering indictment.
 

'Persistent, repeated communications'

The panel includes a suggestion that Perdue broke the law by making false statements and writings as part of "persistent, repeated communications directed to multiple Georgia officials and employees between November of 2020 and January of 2021." 

Perdue and then-fellow Sen. Loeffler took several active steps to question Georgia's election results and suggest there was fraud that tainted the outcome despite no evidence to support it. The pair lost crucial January 2021 runoffs that flipped control of the U.S. Senate that saw depressed turnout in Republican strongholds following baseless allegations of fraud in Georgia.

The jury's recommendation that Trump and his onetime personal attorney Rudy Giuliani also face specific charges for "persistent, repeated communications" with top Georgia officials did not get included in the indictment, but prosecutors did charge Trump with solicitation of violation of oath by public officer for a call placed to the late House Speaker David Ralston asking him to call a special legislative session to change the outcome of the 2020 presidential race.

Legislative hearings

A cornerstone of the indictment is a series of legislative hearings where Trump allies made a litany of false claims about Georgia's vote counting, election results and the integrity of specific poll workers.

The investigative panel recommended charges against seven people in connection with the hearings, four of which — Rudy Giuliani, Bob Cheeley, Ray Smith and John Eastman — are indicted for their actions. 

Prosecutors did not seek any charges against Jacki Pick, a Dallas attorney who presented selected clips of surveillance footage from vote counting in State Farm Arena and falsely claimed it showed voter fraud, and did not charge Atlanta bail bondsman Scott Hall for his role in the hearings. State Sen. William Ligon, who chaired some of the committee meetings and issued a document claiming to be a "report" of the hearings riddled with false claims, was also named in this section but not charged.

Willis also charged Trump and Eastman with filing false documents stemming from a lawsuit challenging the 2020 election results filed in federal court that included false claims about the vote counts made in the hearings and elsewhere that had previously been debunked before the suit was filed.

Harassment of election worker Ruby Freeman

The only section where every charge recommended by the SPGJ made it into the final indictment was a slate of alleged violations regarding harassment and intimidation of Fulton County election worker Ruby Freeman, who along with her daughter Shaye Moss were subject of death threats and racist attacks after false claims about them were amplified by Trump and others.

A trio of people, Harrison Floyd, Trevian Kutti and Stephen Lee, face charges of influencing witnesses and conspiracy to commit solicitation of false statements and writings, while Lee faces criminal attempt to commit influencing witnesses, after alleged efforts to get Freeman to falsely admit she committed voter fraud.

The SPGJ report recommended all three face solicitation charges, which prosecutors combined with the conspiracy statute and false statements and writings statute to argue the trio tried to get Freeman to "knowingly and willfully making a false statement and representation concerning events at State Farm Arena in the November 3, 2020, presidential election."

Alternate electors

One of the panel's more expansive list of names comes from the effort to falsely claim that Georgia's Republican presidential elector nominees were the lawful representatives of Georgia's election results. The SPGJ recommended an array of attorneys involved in the effort, plus former Georgia GOP Chair David Shafer and 12 other alternate electors, face charges for false statements and writings, forgery and filing false documents — but noting that criminal solicitation charges would not apply to the 12 Republicans who served as elector nominees.

Prosecutors took a more granular approach than the recommendations they received, opting not to charge most of the alternate electors (many of whom received immunity deals), and some behind-the-scenes lawyers mentioned like Cleta Mitchell, Alex Kaufman and Kurt Hilbert.

The three Republicans who signed documents falsely claiming to be official electors for Georgia facing charges are Shafer, Cathy Latham and Shawn Still. Shafer and Still are charged with false statements and writings and forgery in the first degree for signing a document, "RE: Notice of Filling of Electoral College Vacancy," that claimed to replace a handful official electors in a manner that followed state law but in reality was not the case. The trio also faces criminal attempt to commit filing false documents and impersonating a public officer charges, while several lawyers in the indictment face conspiracy charges deriving from the plot.

Here, Willis also charged Trump campaign official Mike Roman with seven counts stemming from the alternate elector scheme, despite no mention in the special grand jury's report, reiterating the SPGJ's investigative work as a starting point and not the end. The DA also seeks perjury charges against attorney Bob Cheeley and false statements and writings charges against Shafer for comments made in relation to the sham elector meeting process.

Coffee County breach

In all, there are 48 counts against 16 people found in the indictment but not in the special grand jury's report, including conspiracy to commit election fraud and conspiracy to defraud the state charges against Cathy Latham, Misty Hampton, Scott Hall and Sidney Powell for their role in the breach of election equipment in Coffee County. The final case made to a grand jury that could hand up indictments also added a litany of solicitation and conspiracy charges, alleging that Trump and others named in the indictment tried to impersonate public officers, commit forgery or solicit officials to violate their oath of office.

On the Coffee County front, the SPGJ unanimously voted to recommend the four people named be prosecuted for violating Georgia's computer crimes law, spelled out in the indictment as conspiracies to commit computer theft, computer trespass and computer invasion of privacy, plus conspiracy to commit election fraud under two different election statutes.

The SPGJ recommended prosecutors also file charges under two code sections dealing with tampering with voting machines and direct recording electronic voting machines, though they did not make it into the indictment.

Why aren't all 39 people named in the SPGJ report charged?

There are many reasons that the suggestions made in the final report, which says it is "the sole conclusion of the Grand Jury based on testimony presented, facts received, and our deliberations," and what the Fulton County DA's office presented to a regular grand jury differ so broadly.

Many of the generic code sections listed in the final report are either clarified in the final set of charges or are swapped out with more relevant charges.

The bulk of the 21 named in the SPGJ report but not charged are Republicans who falsely claimed to be Georgia's official presidential electors. Nine fake electors were named but not charged and three weren't named in the report at all, and according to public court filings at least some of them have immunity deals from prosecutors.

Lt. Gov. Burt Jones, who is the only alternate elector that a majority of the special jury recommended face racketeering charges, is currently awaiting the selection of a special prosecutor to review his case after successfully disqualifying the Fulton County DA's office from investigating him because of a conflict of interest. Jones and the other sham electors are listed as unindicted co-conspirators in the charging document.

It's also possible that some of the others named in the special grand jury report but not in the indictment simply did not violate any Georgia laws. Some, such as Boris Epshteyn and Mike Flynn, have tangential connections to Georgia and any actions taken in Fulton County.

For others named, like Sen. Graham and former Sens. Perdue and Loeffler, there are questions of protections afforded as legislators, such as the Speech or Debate Clause, that could have led to pre-trial litigation and potential dismissal of charges.

Kurt Hilbert and Alex Kaufman, the two Georgia lawyers present on the Trump-Raffensperger call and involved with various post-election litigation and the alternate elector scheme, were subpoenaed as witnesses by the DA's office in Mark Meadows' efforts to move his case to federal court.

At the end of the day, too, Willis and the Fulton County DA's office had to consider what sort of case and narrative they bring under Georgia's sweeping racketeering act, as well as the higher burden of proof required for a trial and the overall likelihood of getting a conviction among other decisions that ultimately led to the 135-count indictment handed up last month.