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Opinion: Why Lindsey Graham wasn’t indicted

Opinion by Dennis Aftergut

(CNN) — Editor’s note: Dennis Aftergut is a former federal prosecutor and currently counsel to Lawyers Defending American Democracy, a nonpartisan organization engaged in preserving the rule of law. The views expressed here are his own. Read more opinion on CNN.

For those attacking Fulton County District Attorney Fani Willis for casting her net too far and wide in her case against former President Donald Trump and 18 others for election interference, the news out of Georgia last week should provide reassurance that her case is carefully considered and targeted — and that should put Trump on notice.

What we see in action in Georgia is a pretrial criminal justice system working as designed: In it, grand juries and the prosecutors who oversee them bring charges only when they believe prosecutors can prove guilt beyond a reasonable doubt. Other individuals under investigation are not indicted.

On Friday, a Georgia court released the report of the Fulton County special grand jury whose duty was twofold: first, to investigate Trump’s alleged interference and documented attempt to overturn the state’s 2020 election; second, to make recommendations for indictment. (It shouldn’t be confused with the regular grand jury, whose duty it was to decide whether to indict those under criminal investigation.)

The special grand jury completed its duties in December. After hearing from 75 witnesses, it recommended indicting 39 people, including Sen. Lindsey Graham of South Carolina, former Sens. David Perdue and Kelly Loeffler of Georgia, former Trump national security adviser Michael Flynn, Trump adviser Boris Epshteyn and attorney Cleta MitchellThe senators and the Trump allies have denied wrongdoing.

Yet none of those people were charged last month. Indeed, the special grand jury report, when read against the indictment by Fulton County’s regular grand jury, tells us something vital about the protections against wrongful indictments that grand juries, working with careful prosecutors, help ensure.

Participating citizens in grand juries may not always agree with each other. It is one of many healthy judicial system mechanisms we have to protect individuals under investigation who may not be provably guilty. In addition, the report sends a strong message about the checks and balances in place in such a politically sensitive trial. Using the extra layer of a special grand jury is often reserved for complex corruption cases.

Doing so helps Georgia prosecutors by allowing them to hear two sets of ordinary citizens’ views. It also helps demonstrate to the public the care and extra review given to any charges ultimately filed.

The ordinary citizens on the Georgia special grand jury demonstrated that important discernment, reflected in their critical thinking and disagreements about indicting those who were initially under scrutiny by investigators.

Let’s look at how seriously the special grand jurors took their responsibility. According to Friday’s report, one dissented from recommending racketeering charges against Perdue and Loeffler because the then-senators’ statements, “while pandering to their political base, do not give rise to their being guilty of a criminal conspiracy.” And while the special grand jury recommended indicting the two, with Perdue and Loeffler getting 17 and 14 votes, respectively, months later, the regular grand jury did not indict them.

As for Graham, the special grand jury voted 13-7, with one abstention, to recommend an indictment on charges related to overturning the 2020 election in battleground states such as Georgia. (Not every special juror was present for every vote.) Willis chose not to pursue the recommendation.

There was no indictment of Trump allies Flynn, Epshteyn and Mitchell, even though 20 special grand jurors had recommended indicting them. In contrast, the regular grand jury did indict Trump, former New York City Mayor Rudy Giuliani and former Trump White House chief of staff Mark Meadows after 20 special grand jurors recommended their indictment. All 19 defendants in the Georgia election interference case have pleaded not guilty.

There are multiple explanations for why some people may not have been indicted despite the special grand jury’s recommendations. In the months between the grand jury’s recommendation and the indictment, Willis continued to investigate. She had the ultimate charging authority. She may well have found additional evidence on those she indicted and some reason not to indict others. In addition, it is known that she entered into immunity agreements with several people.

Before indicting someone, prosecutors must be highly confident they can convince a jury of an individual’s guilt beyond a reasonable doubt. Willis may simply have not presented to the regular grand jury some individuals she considered less than provably guilty. In making that decision, she may have taken into account the special grand jurors’ discussions and votes.

But whatever the explanation, the regular grand jury process and prosecutor’s care serve as filters on the special grand jury’s recommendations to help prevent wrongful indictments. Of course, my own experience comes as a federal prosecutor, and Georgia law is different.

While we don’t know why many of the individuals who were recommended for indictment were eventually not charged, in Graham’s case, we do have some clues. There were, by reports, conflicting versions of what he said in his telephone calls to top Georgia officials after the 2020 election. And he’s characterized his actions as part of his constitutionally protected role as a senator to investigate matters that might require national legislation.

In a statement issued Friday, Graham said, “It should never be a crime for a federal elected official, particularly the Chairman of the Senate Judiciary Committee, who will have to vote to certify a presidential election, to question and ensure the integrity of that election.”

Given his potential defenses, it appears that Willis decided that it would be difficult to make a successful case against him at a trial. That is how a prosecutor, working with a grand jury, pursues justice.

As the US Supreme Court wrote in 1976, the grand jury’s “historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.”

The work of the Georgia special and regular grand juries in this important case reminds us of that important lesson.

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