The indictment was brought on Aug. 14 by Fulton County district Attorney Fani Willis alleging that the efforts of President Trump and 18 others to challenge the election results amounted to a racketeering conspiracy.
Mr. Chesebro, a lawyer who represented and advised President Trump in the 2020 election challenges, is accused of devising and executing a strategy to set up alternative slates of electors in several states, including Georgia, and then use them “for disrupting and delaying” the counting of electoral votes by Congress.
Mr. Chesebro’s lawyers, Scott Grubman and Manubir Arora, argued that they need access to documents produced by the grand jury that issued the indictment as well as the Special Purpose Grand Jury that investigated the matter and recommended the charges. They also want to talk to the grand jurors themselves.
“I have very serious questions based on publicly available information, which unfortunately is all we have to go on, that this grand jury, as well as the Special Purpose Grand Jury, was independent,” Mr. Grubman said.
“But we don’t know that. That’s the problem. We don’t know that. And in order for us to find the answer, which clearly we’re entitled to find out, we have to be able to access information.”
Their concern was that the prosecutors may have deprived the juror of sufficient time to make their decision.
“If, for example, a prosecutor simply gets up and summarizes to a grand jury a lengthy indictment as opposed to allowing the grand jurors to read it and understand it independent of the prosecutor, is that indictment valid under Georgia law?” Mr. Grubman said, further explaining:
“If the State of Georgia, in this particular case, presented their case to the grand jury in one day—which I can’t say for sure, but based on the publicly available information, that’s a possibility—it would cause my eyebrows to go up a lot, and I’m not alone.”
In such a case, the indictment would be illegal, in his view.
“The law is clear, the grand jury must act independently of the prosecution,” he said.
Superior Court Judge Scott McAfee acknowledged that as his “initial reaction” he agreed.
“Yes, I think you have the right to speak to grand jurors,” he said.
He also agreed with the prosecutors, however, that grand jury deliberations are secret and off limits, which would then create the issue of how would the defense lawyers get their answers while avoiding questions regarding the deliberations.
The issue of whether a prosecutor read to the jurors the entire indictment or not wound disappear if the jurors read the indictment during their deliberations on their own, he suggested.
“How would you ever ask the question of whether another grand juror read the indictment to everybody else during deliberations? I don’t even think you’ll be able to answer your own question,” he said.
Mr. Grubman disagreed, saying that the questions could be crafted to avoid getting into the deliberations.
“What I think we want to know is, ‘Mr. or Mrs. Grand Juror, when the evidence was being presented to you, did you have the opportunity to ask questions? Did you have the opportunity to follow up?’” he said, later elaborating:
“While we can’t ask the grand jurors what exactly happened in the deliberations, what I think we absolutely can ask and we will ask, I will put this on the record, is, ‘Was there anyone other than the grand jurors in the deliberations?’”
He also stressed that it was not his intention to ask the jurors about their deliberations.
“We will not do that. We’re officers of the court. We know we can’t. We won’t do it,” he said.
The judge noted that any such juror interviews would need to be voluntary and the jurors may even request for somebody from the prosecution team to be on the phone.
Mr. Grubman agreed with the voluntary condition.
“Once the grand juror says, ‘I don’t want to talk to you,’ we’re going to hang up, I can promise you that,” he said.
But he questioned the involvement of the prosecutors unless the jurors bring it up of their own volition. He would particularly want to avoid the prosecutors’ trying to dissuade the jurors from talking.
“I think there’s a risk here that someone from the state might try to get to them first and that would be inappropriate,” he said.
Presence of the prosecution during the interview could also be detrimental, he argued.
“What if a grand juror felt that they were bullied by the state into prosecuting? What if a grand juror felt that the state went a little overboard? If [a prosecutor] was on the phone, I don’t think they’re going to admit that to me.”
Prosecutors Push Back“The state is absolutely opposed to any of this,” special prosecutor Nathan Wade said.
Executive District Attorney Daysha Young conceded that talking to grand jurors is allowed, but said that what the defense wanted to ask wouldn’t be permissible based on the relevant statutes and case law, referring to her PowerPoint presentation—a second one the prosecutors presented in as many hearings.
However much time the jurors want to take to return the indictment is their prerogative, she suggested.
“They’re given a copy of the indictment. They can do with it as they please. And if we start to get into questioning that, we’re getting into what they were doing in their deliberations.”
She argued that both state and federal rules prohibit grand juror testimony from being used to disqualify the indictment so even if the defense could question them, they couldn’t use the information in court.
The judge pointed out that in a previous case, an indictment was dismissed based on prosecutors impermissibly interfering with grand jury deliberations.
“How on earth is a defendant ever supposed to find out whether that happened without talking to the grand jurors?” he asked.
“Well, your honor, we’re officers of the state. We can state, ‘No one was in there besides the grand jurors,’” Ms. Young said.
As she put it, it would come down to the defense claiming that the jurors told them something and the prosecutors claiming the opposite.
The judge noted, however, that in that prior case the defense was able to produce a witness that corroborated their account.
The prosecutors then started to sketch out their position on the matter if it were to be decided against their wishes.
Heated MomentThe atmosphere heated up when Ms. Young brought up that 13 years ago Mr. Arora was admonished by a judge in a different county for “knocking on grand jurors doors, asking them questions.”
“She actually had to issue a temporary protective order to stop that behavior,” she said.
Mr. Grubman asked for an opportunity to respond, but the judge tried to sweep it aside, saying he would disregard such a matter.
“I’m not going to consider it,” he said.
Mr. Grubman insisted, however.
“There have been many times, many times that the Fulton County District Attorney’s Office, including some of the members that are sitting in the courtroom today, have been called out by courts by name with inappropriate things that they do in grand jury and at trial,” he said in a somewhat agitated voice.
“So no, I cannot take Ms. Young’s word for it that it was done properly. Ms. Young is trying to send my client to prison, and we have the right to know if it was done properly.”
He then proceeded to accuse Ms. Young of misrepresenting the case law cited by defense.
“Instead of creating these wonderful PowerPoints they’re so fond of, read our briefs,” he said.
“So the fact that she got up here and lied, lied to the court—”
The judge cut him off at that point.
“All right Mr. Grubman, I don’t think we can go down that road,” he said.
“Your Honor, she lied to the court, and I apologize, and she defamed my co-counsel,” the lawyer continued.
“Mr. Grubman,” the judge interjected. “Mr. Grubman. I said it’s over.”
“All right,” he replied.
Returning to his seat, he added: “Well I wish she would have stopped there before defaming my co-counsel.”
Pushing through the tense atmosphere, the judge asked the defense to email him the questions and topics that they would like to ask the jurors about.
“I think there’s a way to accommodate the case law cited by the state about the general secrecy but still allow the defense their ability to make sure the grand jury fulfilled its duty in a manner recognized by law,” he said.
He didn’t immediately issue a ruling on the matter.
Mr. Chesebro is scheduled for trial on Oct. 23 together with Sidney Powell, a lawyer and former federal prosecutor who challenged the 2020 election on behalf of President Trump. All the other defendants would face trial on a later date. In the meantime, Mr. Chesebro and Ms. Powell are making their arguments for why their cases should be dismissed before trial.