Georgia case lays the ground for parallel prosecutions of Trump

WASHINGTON — The district attorney in Fulton County, Georgia, Fani Willis, began investigating former President Donald Trump 21 months before Jack Smith was appointed special counsel — but they both secured indictments, covering much of the same ground, in one two-week span.

The Fulton County indictment represents a single chapter in the four-count indictment brought by Smith: the former president's attempt to strong-arm Georgia into his win column.

But the Atlanta case, because of its use of the state's expansive anti-racketeering law, extends far beyond Georgia's borders to encompass Trump's broader effort across the country to cling to power — creating an extraordinary parallel-track prosecution of a leading political figure unlike anything in the country's history.

In a densely packed 98 pages, Willis makes the case that Georgia was not merely the site of Trump's criminal acts but also the hub of a Trump-orchestrated national conspiracy, abetted by the same people implicated by Smith's team as complicit in the effort to overturn the 2020 election. Five of the six unindicted co-conspirators who were likely included in the federal indictment — Rudy Giuliani, Kenneth Chesebro, John Eastman, Sidney Powell and Jeffrey Clark — were named in the indictment by Willis on Monday.

Willis and Smith, who have interviewed many of the same witnesses and reviewed much of the same evidence, converged on the same conclusion from different directions — that Trump and his allies "knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election," Fulton County prosecutors wrote in summing up the charges.

Smith's team described a similar conspiracy, one that he said was "fueled by lies."

There is no road map for indicting a former president, much less simultaneously prosecuting one for similar crimes in two jurisdictions. Prosecutors, especially those working for the Justice Department, typically seek to avoid concurrent cases to prevent discrepancies, small or significant, in witness testimony that can be exploited by the defense.

How this will work out remains unclear. Smith, who was appointed special counsel in November, has a more streamlined case and is pushing hard for a speedy trial starting in early January. Willis, speaking to reporters late Monday, said she had no "desire to be first or last." But she also suggested her team would request a trial date "within six months," which would be by February 2024, even though people involved in the case have said such a short timetable seems highly unlikely.

The federal indictment treats Georgia as one of several states where illegal conduct occurred leading up to the Jan. 6, 2021, attack on the U.S. Capitol, but both indictments span a broad variety of activities. Those include Trump's unrelenting effort to pressure Vice President Mike Pence into blocking official certification of Joe Biden's victory, even as Trump loyalists rampaged through the halls of Congress.

One of the more surprising developments revealed Monday was how far Willis' investigators roved beyond state borders. Most of the criminal acts outlined in the indictment occurred in state, she told reporters after it was unsealed, but "some occurred in other jurisdictions, and are included because the grand jury believes they were part of the illegal effort to overturn the results of Georgia's 2020 presidential election."

The state is mentioned no fewer than 48 times in the 45-page federal indictment, and many of the most significant incidents and actions investigated by Willis and her prosecutors were also cited by Smith and his team.

They include the infamous Jan. 2, 2021, phone conversation during which Trump asked Georgia's secretary of state, Brad Raffensperger, to "find" the 11,780 votes needed to put him over the top; Trump's insistence on repeating fabricated claims that thousands of dead people and out-of-state residents had been allowed to vote for Biden — even though Raffensperger and others repeatedly provided evidence that it was untrue; Giuliani's false accusation that election workers in Atlanta logged fraudulent vote totals; and the dissemination by Trump's legal adviser, Powell, of debunked conspiracy theories, including the fictional claim that Biden's supporters manipulated electronic voting machines.

The two cases, however, have significant differences. The most obvious is the indictment of Mark Meadows, Trump's former chief of staff, in Georgia. A central figure in the events leading up to the attack on the Capitol, Meadows is conspicuously absent from the federal indictment as either a witness or defendant.

Another potentially stark difference: While Smith imposed lenient bond conditions for Trump in Washington and for the former president and his two co-defendants in the case involving his retention of national security secrets, Fulton County officials have suggested they will process those charged as typical criminal defendants, requiring mug shots and possibly even cash bond.

Even if the two prosecutorial teams do not appear to be on a collision course, they have veered into each other's lanes from time to time.

Willis and her staff took considerable interest in the conduct of Clark, a former Justice Department official who defied his superiors in an effort to throw the government's prestige behind false election claims. The department blocked that effort — and Clark plays a prominent role in the government's case, illustrating the former president's determination to defy his own advisers to elevate someone who shared his goal of retaining power.

One of the factors that might have spurred Smith to bring his charges before Willis indicted Trump was a desire to "get his foot in the door" before Willis, according to a person with knowledge of the situation.

It is likely — if not guaranteed — that Smith will proceed first, given the fact that his case involves only one defendant. The judge overseeing the trial, Tanya Chutkan, has also signaled her intention to move quickly, particularly if Trump keeps up his attacks on the court and prosecutors, which she said could taint the pool of potential jurors.

If the Georgia case "went first, it would be a problem for Jack Smith," said John Fishwick Jr., who served as U.S. attorney for the Western District of Virginia from 2015 to 2017. "But there is no way the Georgia case goes to trial before the 2024 election, so short term, this overlap will not matter much."

Justice Department prosecutors have a reputation for acting aggressively with local officials investigating the same events. But Fulton County prosecutors had a nearly two-year head start, so they were far along in their investigation long before Smith, building on an investigation that began in the U.S. attorney's office in Washington, took over as special counsel in late 2022.

To the extent that the offices have communicated at all, they have done so minimally, and often through the U.S. attorney's office in Atlanta, according to law enforcement officials.

But that might change: In previous cases in which such overlap existed, Justice Department lawyers have requested to see evidence that local prosecutors turned over to the defense lawyers during the discovery process to avoid any surprises that could jeopardize their own case. Local officials are not legally required to comply but often do, sometimes in exchange for information collected by the government.

Trump and his allies have attacked both Willis and Smith and suggested that they have been secretly working in tandem to destroy Trump personally and politically.

Willis did not address the issue in her news conference shortly after the indictment was released, but her previous public statements seem to indicate that they do not really have much of a relationship at all.

"I don't know what Jack Smith is doing, and Jack Smith doesn't know what I'm doing," Willis recently told a local radio station. "In all honesty, if Jack Smith was standing next to me, I'm not sure I would know who he was. My guess is he probably can't pronounce my name correctly."

Glenn Thrush reported from Washington, and Danny Hakim from Atlanta.