Special Counsel Jack Smith and Fulton County District Attorney Fani Willis are collaborating on the prosecution of former President Donald Trump for alleged involvement in a conspiracy to overturn the 2020 election outcome and retain power despite his defeat. However, their approaches diverge significantly, as evidenced by the recently acquired indictments. Smith’s strategy revolves around four federal charges against Trump, while Willis has orchestrated a wide-ranging case in Georgia, implicating Trump and 18 associates with a staggering 41 criminal counts. These distinct strategies underline the divergent paths taken in their complex and politically charged legal proceedings. Both face the intricate challenge of bringing charges against a former President who also intends to run for president in the upcoming election. However, their legal endeavors encounter different obstacles.
Smith’s approach appears to be driven by a sense of urgency, potentially fueled by the prospect of Trump returning to the presidency. The former President could leverage executive power to shield himself from federal criminal consequences, using measures such as self-pardoning or appointing an attorney general to dismiss charges. To counter this, Smith has pursued a streamlined indictment, aiming for a swift trial. Barbara McQuade, a former U.S. Attorney, highlighted the “race against the clock” in Smith’s case. In contrast to the federal scenario, no U.S. attorney general can impede a state court investigation in Georgia, enabling the case to proceed even if Trump is elected.
In contrast, Smith refrained from charging Trump with incitement of the January 6, 2021 insurrection at the U.S. Capitol. Legal experts suggest that such charges could entangle the prosecution in First Amendment debates, giving Trump greater legal maneuverability. Instead, Smith’s 45-page indictment centers on four counts: conspiracy to defraud the government, conspiracy against the right to vote, conspiracy to obstruct an official proceeding, and obstruction of an official proceeding. While six unnamed co-conspirators have been identified, it is speculated that Smith has temporarily left them out to expedite the process, possibly intending to charge them later or seek their cooperation as government witnesses against Trump.
On the other hand, Willis has pressed 13 criminal charges against Trump, including solicitation of a public official to violate their oath of office, conspiracy to commit forgery, conspiracy to file false documents, and making false statements. Additionally, she has implicated Trump, along with figures like former White House Chief of Staff Mark Meadows and ex-New York City Mayor Rudy Giuliani, in orchestrating a criminal scheme to undermine election results. All individuals involved face various charges but are prosecuted under Georgia’s anti-racketeering laws, commonly referred to as RICO statutes, typically utilized in mob-related cases. Willis’s comprehensive approach aims to establish a criminal enterprise through the explicit actions of the accused individuals. Anna Cominsky, a professor at New York Law School, clarified that “She named those defendants because she has to be able to show the criminal enterprise.” This extensive framework seeks to substantiate her case by demonstrating overt acts committed by the participants.
While Willis has expressed her intention to conclude the case within six months, former prosecutors are skeptical of this timeframe due to the multiple co-defendants involved. It is likely that the case will not be resolved before the next election. Jeremy Saland, a former Manhattan prosecutor, pointed out that numerous co-defendants could result in a series of motions and potential delays. Although Willis aims for a consolidated trial, co-defendants often seek separate trials, a decision that is subject to the judge’s discretion.
The timeline for Smith’s federal case depends on the judge’s ruling. Smith has proposed commencing the trial on January 2, 2024, just before the Iowa caucuses, concerning charges related to Trump’s alleged efforts to nullify the election. However, Trump’s legal team seeks to postpone the trial, a request that is likely to be granted considering the customary delays afforded to defendants dealing with a significant amount of evidence. Additionally, Trump is concurrently facing a trial in a Special Counsel case for mishandling classified documents.
Smith may encounter additional obstacles if Trump’s lawyers succeed in extending the timeline, aligning with the upcoming presidential election where Trump could potentially become the Republican nominee. Currently, Trump holds a substantial lead in GOP primaries. David Weinstein, a former assistant U.S. attorney, emphasized Smith’s efforts to conclude one of these cases prior to the next general election, in order to avoid any perception of influencing the electoral process.
While Trump is scheduled to stand trial in March on charges of allegedly falsifying business records, a trial date for the case related to hoarding national security information at Mar-a-Lago has been set for May 2024. Trump’s attempt to postpone the Mar-a-Lago case based on claims of campaign interference has been denied.
As Smith strives to secure convictions in the federal cases, Willis may proceed with her prosecution regardless of the outcome of the 2025 election. This approach provides her with the flexibility to tackle an extensive case from the start. If Trump wins the 2024 election, his lawyers may argue against his trial while serving as a sitting president.