If prosecutors had their way, every case would be insulated, isolated, and sealed off from the world around it. No politics, no media, no public attention – just the evidence and the courtroom, the facts and the law, and that’s that.
Of course, reality has a way of intruding – as we saw this week with the bizarre media blitz by Emily Kohrs, the foreperson of the Fulton County special grand jury which apparently (if you caught Kohrs’s wildly unsubtle drift) has recommended an indictment of Donald Trump. I’d bet good money that every prosecutor on the case had the same reaction as they flipped on the tv or opened up the newspaper and saw Kohrs spilling the tea: a hand-slap to the forehead, and the exasperated utterance of a sentence beginning with the words, “What the…”
Let’s set in place a few stipulations right up front. We will not comment on the superficial appearance or mannerisms of Kohrs. But we also will not minimize her agency in choosing to go public, and we won’t underplay the consequences of that decision. Kohrs is 30 years old. She’s an adult. She took a solemn oath and did her service as a grand juror. Now, like it or not, she is intentionally making a spectacle of herself, to the detriment – likely non-fatal, but still not good – of a potential prosecution of Trump and others.
Kohrs went in an instant from the anonymity of grand jury service to the national spotlight. Nobody thrust it on her; she chose to talk to the newspapers and go on camera. And talk she did. Oh, sure, she pretended to play coy, but if anything, her cutesy wordplay only made it all seem even worse. When asked squarely if the grand jury had recommended an indictment of Trump, she responded, “You’re not going to be shocked. It’s not rocket science.” Just in case that wasn’t clear enough, she said in another interview, “we heard his name a lot. We definitely heard a lot about former President Trump, and we definitely discussed him a lot in the room. And I will say that when this list comes out, you wouldn’t – there are no major plot twists waiting for you.” Gee, what ever could she mean by that?
By the way, to those who contend that CNN (where I am a Senior Legal Analyst) or other media outlets should not have run the Kohrs interviews: I respectfully disagree. Kohrs’s comments were absolutely newsworthy. She provided new information about one of the country’s most important stories, the potential indictment of a former president for the first time in U.S. history. It would be journalistic malpractice not to cover her revelations. This was a consensus shared by major media outlets including CNN, NBC, the New York Times, the Associated Press, and the Atlanta Journal Constitution, all of whom ran interviews with Kohrs. (She certainly did make the rounds quickly.) It’s simply not the job of the media to sanitize the prosecution’s case, or to remove obstacles to Trump’s indictment or conviction. Indeed, the media often runs interviews with people who do self-defeating things, who make comments detrimental to their own cases, who might make prosecutions (of themselves or others) more or less likely. Peter Navarro, Steve Bannon, Rudy Giuliani – heck, Donald Trump himself – have all made comments in public interviews that have inured to their own potential legal detriment. Should the media have shelved those interviews? Of course not. We don’t play sides. If it’s newsworthy and it’s fair, then it runs.
There are two primary problems with Kohrs’s public statements. First, she has come darn close to breaking the law. Ordinarily, grand jury proceedings are secret, and grand jurors generally need to keep their mouths shut, at least during the pendency of a case. Georgia law is more forgiving, as it prohibits only public disclosure of the grand jury’s “deliberations.” But there’s a reasonable argument that Kohrs did just that. She didn’t quite say the grand jury had actually voted to recommend an indictment of Trump, but she basically told us that the guy’s name begins with a “T” and ends with “r–u-m-p.” She also spoke publicly about particular witnesses, and the grand jury’s views and conclusions as to their credibility. Senator Lindsey Graham, she said, was “honest.” Governor Brian Kemp seemed unhappy to be there. Cassidy Hutchinson was forthcoming but Mark Meadows was not, in the grand jury’s estimation. If that doesn’t count as talking about the grand jury’s deliberations, it’s close.
At a minimum, Kohrs has given Trump’s legal team fodder for a motion to dismiss based on breach of grand jury rules, which arguably could damage his right to a fair jury trial. On balance, such a motion seems unlikely to succeed. Kohrs was part of a special grand jury, which has the power only to make recommendations but not to actually indict. And, to the extent her comments have contaminated a potential jury pool, the jury selection process typically can weed out anybody who has been unduly influenced.
More broadly, Kohrs’s media tour undermined the sense of seriousness and fairness around the case. Here’s how I put it to Anderson Cooper on air for CNN, moments after her interview (Cooper was equally aghast; he said to me on air that he “was wincing just watching her eagerness to hint at stuff”): “It’s painful in that respect. That’s a very serious prospect here. We’re talking about indicting any person, you’re talking about potentially taking away that person’s liberty – we’re talking about potentially a former president for the first time in this nation’s history. She does not seem to be taking that very seriously.” Cooper added, “There’s no reason for her to be out talking.” Amen, brother.
Let’s remember that an indictment is just a piece of paper – but it can and almost always does lead to a human being getting locked up. No matter how much the subject might ultimately deserve the eventual outcome, that’s a serious matter, to be treated with a certain gravity, and dignity. Yet Kohrs brought a silly, delighted, celebratory air to the proceedings. She is unmistakably biased against Trump; she could barely conceal her glee at the prospect of his indictment. She played up her own emotional investment in the case’s outcome, begging for prosecutors to indict somebody, or else she would be “sad.” She dwelled on silly, irrelevant details. She opined, for some reason, on precisely how funny she found certain witnesses; Georgia Secretary of State Brad Raffensperger was “a really geeky kind of funny” while Georgia House Speaker David Ralston was “hilarious.” She gawked at celebrity witnesses, noting how she made a point to shake Rudy Giuliani’s hand after his testimony because he is “like a myth figure in my head.”
And Kohrs offered eyebrow-raising revelations about the grand jury’s operations. In one interview, she casually noted that “one of her fellow jurors brought the newspaper every day and pointed out stories about the investigation. Prosecutors, Kohrs said, told jurors they could consume news coverage related to the case but urged them to keep an open mind.” As a former prosecutor, allow me to interject: what? The job of any grand jury (or trial jury) is to decide the case based solely on the evidence formally presented in the courtroom, and to minimize (and, if possible, entirely avoid) outside media coverage. But these grand jurors were reading newspaper coverage of the case, inside the grand jury room, with the prosecutors’ blessing? Good lord.
And Kohrs mentioned breezily that “she swore him [Ralston] in holding a Ninja Turtle Popsicle she had just received at an ice cream party thrown by the DA’s office.” (Hilarious.) So much for the image of the grand jury as an independent factfinding body. Kohrs paints a picture not of a grand jury serving as a bulwark of liberty, dispassionately holding prosecutors to their proof; she makes it look like these grand jurors were the prosecutors’ party pals, munching together on cartoon-themed frosty treats as they moved together, inexorably, towards indictments.
Get ready for more of this. Emily Kohrs will not be the first person who plays some tangential role in the likely prosecution of Trump in Georgia who tries to grab the spotlight, even for just a moment. Some will be driven by old-fashioned spotlight-seeking; maybe others will hold a delusion that they’ll be able to cash in. And I suspect part of the irresistible pull of the spotlight is driven by a desire to be part of Trump’s undoing. He’s getting indicted, it seems, and lots of folks want in on the credit – though, as I’ll continually note, there’s a massive stretch of rocky, uphill terrain between a Georgia indictment of Trump and an actual conviction.
Admittedly, I’m doing more preaching in this piece than normal. Here’s why this one is under my skin. We’ll probably see Trump indicted, soon. The proceedings will be monumental and the stakes unimaginably high – for the DA, for the country, and for Trump himself. We need to approach the case accordingly. That doesn’t mean we can’t crack a joke or marvel incredulously or have human reactions as the case plays out. But we also need to resist the temptation to pile on, to cheerlead, and to self-promote at the expense of the criminal justice process itself.
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