In the span of a fortnight, Donald Trump has been placed at the centre of two vast alleged criminal conspiracies to overturn the 2020 US presidential election.
The separate cases will play out in parallel over the coming months in a drain on Trump’s time and finances as he launches another run for the White House.
On the face of it, the events at issue are largely the same: the two months of chaos after the November 2020 election during which Trump, his lawyers and his political allies tried to prove claims of fraud and stop Congress from certifying Joe Biden’s victory.
But the indictments delivered by the two prosecutors – Jack Smith, who was appointed by US attorney general Merrick Garland to oversee Trump prosecutions on the federal level, and Fani Willis, the Fulton County district attorney whose state, Georgia, was a primary focus of the 2020 fight – underline the different approaches they have taken to the legally and politically fraught cases.
The filing of the indictments so close together, and the prospect of two trials over similar conduct, threatens to complicate the prosecutions. Beyond practical hurdles, handling two hot-button cases in parallel may test the territoriality of prosecutors who have spent years building historic indictments. Until five months ago, no former US president had ever faced criminal charges.
[ Two months in Georgia: How Donald Trump tried to overturn a crucial state’s voteOpens in new window ]
One 2020 election case would not necessarily throw a wrench in the other, said Daniel Richman, a professor at Columbia Law School. But “generally, having two different prosecutors walking through a crime scene is usually a recipe for, at the very least, bruised egos and, at the very most, damaged cases”.
The 45-page indictment obtained by Smith’s team earlier this month is expansive by federal standards, but less than half the length of the 98-page document unveiled by Willis late on Monday.
The federal indictment focuses narrowly on Trump’s actions, with six unnamed co-conspirators listed, citing violations of federal laws including conspiracies to defraud the US, obstruct an official proceeding and threaten individual rights.
Willis, by contrast, painted a broad picture of a criminal enterprise to overturn the vote, allegedly joined by 30 unindicted co-conspirators and the 19 defendants ranging from lawyers and top White House officials to election supervisors in Georgia’s counties.
To build the sweeping case, Willis relied on Georgia’s particularly expansive racketeering statute. Often featured in mob prosecutions, the law acts as an umbrella to capture swaths of individual actions to add up to a criminal enterprise.
[ The Donald Trump show: will the chaos help or hinder?Opens in new window ]
Smith may yet file a superseding indictment to bring additional charges or name new defendants, as he did in a separate case over Trump’s handling of classified documents. “But Ms Willis seems to have put all of her cards on the table at once,” said Amy Lee Copeland, a Georgia-based attorney. “Everybody knows what they’re getting.”
With their state and federal cases on the 2020 election unfolding side-by-side, Willis and Smith will be forced to tread a tightrope as they prosecute two consequential legal challenges: collaborating without moving in full synchrony.
“The challenge here is to have sufficient co-ordination so that each prosecutor doesn’t step on the other prosecutor’s toes and disrupt scheduling or put witnesses at a disadvantage that will lead to their non-co-operation,” said Richman. “At the same time ... they don’t want to be seen as a single team” and be held responsible for each other’s actions.
Prosecutors in the cases may also be tested by overlapping witnesses. “One interesting dynamic will be that the testimony a witness gives in one case could be used in the subsequent case,” said Barbara McQuade, a professor at University of Michigan’s law school and a former US attorney. “Any inconsistencies will be used to attack their credibility.”
Witnesses seeking to invoke the US constitution’s fifth amendment right against self-incrimination may generally be offered immunity in exchange for their testimony. But according to Jeffrey Bellin, a professor at William & Mary Law School, 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 some other proceeding”.
The prosecutors’ contrasting demeanours have also come to the fore. After bringing each of his two cases against Trump, Smith – a career prosecutor whose most recent job involved trying cases at The Hague – made brief on-camera statements and took no questions.
During her press conference late on Monday night, Willis – who took office in 2021 as the first woman to serve as district attorney in majority-black Fulton County – explained the indictment in detail. She listed every defendant by name, and offered to field queries from reporters “prior to going to sleep”, as the clock neared midnight.
Beyond the substantive differences, two prosecutions addressing “some of the same conduct [is] going to create a lot of practical problems”, said Bellin.
These difficulties, legal experts say, are bound to be amplified by the historical significance of the cases against Trump.
It is “as high-profile as it gets ... no one really knows how this is going to play out, because it’s so unusual”, said Bellin. “All of these factors ... make [the Department of Justice election case] different from a typical case. And then you’re adding another one.”
The two cases will play out in the US’s federal and state court systems respectively, drawing on different statutes and local laws. Smith’s case will be heard at the federal court in Washington, not far from where Trump spoke to supporters just before they marched on the Capitol on January 6th 2021. The Fulton County courthouse in Atlanta allows cameras, raising the possibility that the district attorney’s case will play out on television, unlike federal courthouses where cameras are typically forbidden.
The most practical challenge will be scheduling, as courts across the US set up timetables in multiple Trump cases with the 2024 presidential vote and several Republicans presidential primaries approaching.
“It is not clear which trial would go first, but the judges would have to avoid conflict to give Trump’s lawyers adequate time to defend both cases,” said McQuade at the University of Michigan.
Trump’s legal team has attempted to stymie prosecutors’ efforts to seek speedy trials, particularly as proceedings stack up – the former president faces criminal indictments 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 readying a complex racketeering case involving so many defendants could make that an overly ambitious target. – Copyright The Financial Times Limited 2023
