The body overseeing the Fulton County investigation is known under Georgian law as the Special Purpose Grand Jury. It can sit longer than a normal grand jury and has the power to subpoena targets of the investigation to testify, though it lacks prosecution powers. Once a special grand jury has issued a report and recommendations, indictments may be brought by a regular grand jury.
A majority of the Texas Court of Justice judges held that the Georgia grand jury was not a proper criminal grand jury because it lacked the power to prosecute and therefore probably does not have the authority to compel the appearance of Texas witnesses.
“I am inclined to think that such a panel is not the kind of grand jury contemplated by the Uniform Act,” Justice Kevin Yeary wrote. “And if I were wrong about that, I would put the burden of proof on the requesting state.”
His view was largely supported by four other judges on the nine-member court.
The question of whether Fulton County’s special jury is civil or criminal in nature arose in late August when attorneys for Gov. Brian Kemp, a Republican, tried unsuccessfully to overturn a subpoena ordering him to testify. The governor’s attorneys argued that the special grand jury was civil and that Mr. Kemp need not testify in a civil suit under the doctrine of sovereign immunity.
But in a written order dated Aug. 29, Fulton County Superior Court Judge Robert CI McBurney dismissed the idea that the special grand jury was organized civilly, noting that none of the grand jury’s formation documents contained any evidence it was mentioned that she would consider civil suits.
“The inability of a special-purpose grand jury to bring indictments does not diminish the criminal nature of its work or in any way turn this criminal investigation into a civil one,” Judge McBurney wrote. “Even police officers do not have the power to bring charges, but their investigations are clearly criminal.”
Ronald Wright, a law professor at Wake Forest University who studies the work of law enforcement officers, said the Texas court’s decision, based on its interpretation of the purpose of the special grand jury, seemed unusual. “I haven’t heard from a state that said categorically, ‘No, we read your law, that doesn’t apply here, you can’t get that witness,'” he said.
