“The bottom line is, it’s very bad news for Trump,” said George Washington University law professor John Banzhaf, who has closely followed both cases.
Willis and Jack Smith, the special counsel overseeing the DOJ probe, have overlapping areas of interest. Georgia features prominently throughout Smith’s 45-page indictment. In addition to Trump, five of the defendants who have been charged in Fulton appear to match the descriptions of unindicted co-conspirators in the federal indictment: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark and Kenneth Chesebro.
The two prosecutors, however, have adopted different legal strategies. While Smith focused his four-count indictment squarely on the former president — seemingly in the interest of swiftly moving his case before the 2024 elections, many legal experts have speculated — Willis took a broader approach. She secured charges against 19 people, including Trump, for what she calls a “criminal enterprise” that sought to overturn Biden’s victory in Georgia.
Willis’ strategy has paid early dividends. In September Atlanta bail bondsman Scott Hall pleaded guilty to five misdemeanor charges for his role in a Coffee County election data breach in January 2021. Then in October, three lawyers pleaded guilty to various charges in quick succession: Powell, Chesebro and Jenna Ellis.
Credit: Fulton County Sheriff's Office
Credit: Fulton County Sheriff's Office
As part of their plea deals, each of the defendants agreed to testify truthfully in future Fulton County proceedings as prosecutors target the remaining defendants. Willis has offered other defendants plea deals, and more are expected to accept them in coming weeks and months.
Observers said that the testimony Chesebro and Powell in particular have agreed to give in Georgia could put them in a tight spot with Smith. Any statements they make in Fulton court or in publicly-released documents could be used against them in Washington.
That could incentivize them to cut a similar cooperation agreement with DOJ in the federal case, said Norm Eisen, President Barack Obama’s onetime ethics czar.
“Once you’ve pled guilty in state court, it’s much harder to resist a guilty plea and/or cooperation in federal court for the same underlying conduct,” said Eisen, who has written extensively about both cases for the Brookings Institution.
A question of leverage
By taking a plea agreement in Fulton, the defendants essentially waived their Fifth Amendment rights against self-incrimination. If any of those defendants were to take to the witness stand in Georgia and, in the eyes of a judge, not testify truthfully, they could be prosecuted for perjury, which would violate the terms of their probation in Fulton.
Andrew Weissman, a former general counsel to the FBI, said that fact gives not only Fulton prosecutors enormous leverage, but Smith’s team too.
“It’s very unusual to have state resolutions and not federal resolutions when there’s clear federal liability out there,” said Weissman, who also served as a lead prosecutor for special counsel Robert Mueller, during a recent webinar hosted by the Democracy 21 Education Fund. “This leads to... a lot of precariousness for the defense team as to how they’re going to proceed.”
Timing could be a significant factor. Smith’s case is slated to go to trial on March 4. Willis’s has not been scheduled, but a growing number of legal experts estimate that jury selection may not begin until closer to the summer, when the Washington trial would presumably be concluded.
Willis could opt to share materials with her federal counterparts, such as the proffers her team recorded with the defendants who accepted plea deals, but there’s no law requiring her to do so. Fulton prosecutors could also have exclusive information uncovered from special grand jury testimony last year.
Best interest of the public
The Justice Department’s guidelines for coordinating parallel inquiries with state or other law enforcement officials directs federal prosecutors to handle matters “carefully in order to avoid allegations of improper release of grand jury material or abuse of civil process.” The guidelines state that there could be some circumstances where parallel efforts are “impractical,” especially when secrecy is of big concern, but it states that other times such cases “can complement one another and serve the best interests of law enforcement and the public.”
Scott Grubman, one of Chesebro’s lead Atlanta attorneys, recently pointed out that DOJ policy discourages the feds from pursuing cases against defendants who have pleaded guilty or been convicted in state cases in most circumstances. The so-called “Petite policy” precludes the federal government from pursuing such cases unless the matter involves “a substantial federal interest” that was left “demonstrably unvindicated.”
There are many parties closely monitoring for any cooperation between Willis and Smith. House Judiciary Committee Chairman Jim Jordan has pressed Willis for information about her interactions with the special counsel’s office.
Willis has repeatedly suggested that state and federal prosecutors have had very limited contact so far.
Banzhaf believes that could change – he said such cooperation might be more appealing to Smith now that Willis has testimony that could help his case.
Georgia State University law professor Caren Morrison doesn’t believe the prosecutors will formally “join forces.” But she said the benefits may flow both ways as their separate cases progress. Given the current calendar, Willis would presumably have a chance to see the federal evidence before she tries her case.
“Whoever goes second has the advantage of having testimony that’s on the record,” said Morrison, a former federal prosecutor.