In the space of a fortnight, Donald Trump has been placed at the center of two vast alleged criminal plots to overthrow the 2020 US presidential election.
The separate cases will run in parallel over the next few months, draining Trump’s time and finances as he launches another race for the White House.
On the face of it, the events at issue are largely the same: the two months of chaos following the November 2020 election in which Assethis lawyers and political allies tried to prove the fraud allegations and prevent Congress from certifying Joe Biden’s victory.
But the indictments filed by the two prosecutors – Jack Smith, who was appointed by US Attorney General Merrick Garland to oversee Trump’s federal prosecutions, and Fani Willis, the Fulton County prosecutor whose state , Georgia, was the focus. the fight of 2020 – highlight the different approaches they have taken to the legally and politically strained cases.
The filing of indictments so close together and the prospect of two trials for similar behavior threaten to complicate prosecutions. Beyond the practical hurdles, handling two hot cases in parallel can test the territoriality of prosecutors who have spent years drafting landmark indictments. Until five months ago, no former US president had ever faced criminal charges.
A 2020 election case wouldn’t necessarily throw one spanner into the other, said Daniel Richman, a professor at Columbia Law School. But “generally, having two different prosecutors at a crime scene is usually a recipe for, at the very least, bruised egos and, at most, damaged cases.”
The federal indictment focuses narrowly on Trump’s actions, with six unnamed co-conspirators listed, citing violations of federal law, including conspiracies to defraud the United States, obstruct official process and threaten individual rights.
Willis, on the other hand, painted a general picture of a criminal enterprise to nullify the vote, who were allegedly joined by 30 unindicted co-conspirators and the 19 defendants ranging from lawyers and senior White House officials to election supervisors in Georgia counties.
To build the sweeping case, Willis relied on Georgia’s uniquely expansive racketeering law. Often featured in mob lawsuits, the law acts as an umbrella to capture pieces of individual actions to add to a criminal enterprise.
Smith can still file a superseded indictment to bring additional charges or name new defendants, as he did in a separate case on Trump’s handling of classified documents. “But Ms. Willis seems to have put all her cards on the table at once,” said Amy Lee Copeland, a Georgia-based attorney. “Everyone knows what he gets.”
With their state and federal cases on the 2020 election playing out side by side, Willis and Smith will be forced to walk a tightrope as they pursue two back-to-back legal challenges: collaborating without moving in full sync.
“The challenge here is to have enough coordination so that each prosecutor doesn’t step on the other prosecutor’s toes and disrupt the schedule or put the witnesses at a disadvantage, which will lead to their non-cooperation,” said Richman. “At the same time . . . they don’t want to be seen as one team” and held accountable for each other’s actions.
Prosecutors in cases can also be tested by overlapping witnesses. “An interesting dynamic will be that the testimony of a witness in one case can be used in the next case,” said Barbara McQuade, a professor at the University of Michigan Law School and a former US attorney. “Any inconsistencies will be used to attack their credibility.”
Witnesses who seek to invoke the United States Constitution’s Fifth Amendment right against self-incrimination can generally be offered immunity in exchange for their testimony. But according to Jeffrey Bellin, a professor at William & Mary Law School, the uncertainty generated by two cases in separate jurisdictions could make witnesses “more reluctant”. . . because they don’t want to create evidence that could be used against them in another proceeding”.
The contrasting attitudes of prosecutors were also highlighted. After bringing each of his two cases against Trump, Smith — a career prosecutor whose most recent job was trying cases in The Hague — made brief statements on camera and asked no questions.
At her press conference late Monday night, Willis — who took office in 2021 as the first woman to serve as district attorney in the majority black county of Fulton — explained the indictment by detail. She listed each defendant by name and offered to answer reporters’ questions “before she went to sleep” as the clock approached midnight.
Beyond the substantive differences, two lawsuits dealing with “some of the same conduct [is] is going to create a lot of practical problems,” Bellin said.
Those difficulties, say legal experts, are sure to be magnified by the historic significance of the cases against Trump.
It is “as publicized as possible. . . nobody really knows how it’s going to play out because it’s so unusual,” Bellin said. “All these factors . . . make [the Department of Justice election case] different from a typical case. And then you add another one.
Both cases will take place in the federal and state court systems of the United States respectively, relying on different statutes and local laws. Smith’s case will be heard in federal court in Washington, not far from where Trump spoke to his supporters just before they marched on the Capitol on January 6, 2021. The Fulton County Courthouse in Atlanta allows cameras, raising the possibility that the district attorney’s case is being played out on television, unlike federal courthouses where cameras are generally prohibited.
The more practical challenge will be planning, as courts across the United States have set timelines in several Trump cases with the 2024 presidential vote and several Republican presidential primaries approaching.
“It is unclear which trial would go first [between Georgia and the DoJ]but judges should avoid conflict to give Trump’s attorneys enough time to defend both cases,” said McQuade of the University of Michigan.
Trump’s legal team has been trying to thwart prosecutors’ efforts to secure speedy trials, especially as proceedings mount – the former president faces criminal charges in four jurisdictions in four different states, with two trial dates already set before Election Day in November 2024. Willis said she would ask the judge for a trial date within six months – although the practicalities of preparing for a complex racketeering case involving as many accused may make it too ambitious a goal.