WASHINGTON – The Fulton County District Attorney’s investigation into former President Donald J. Trump’s efforts to overturn the 2020 Georgia election is nearing a decision point, posing new challenges for federal prosecutors who are considering prosecuting him in connection with the April 6 attack January 2021 to impeach the Capitol.
The long-running Atlanta investigation into Fani T. Willis essentially overlaps with Special Counsel Jack Smith’s broader investigation into Mr Trump’s conduct in Washington. Both rely on similar documentary evidence, some of the same criminal targets, and a small, shared pool of witnesses with knowledge of the former president’s actions and intentions.
Trump’s critics believe the simultaneous investigations offer reassurance that the former president and the architects of the plan to install fake voters in battleground states, including Rudolph W. Giuliani and John C. Eastman, will be held accountable.
But they also create complications for two aggressive investigative teams pursuing some of the same witnesses and raise the possibility of discrepancies in testimonies that Mr Trump’s lawyers could exploit. Ms Willis and her team have a head start, having started work in February 2021, and are expected to face charges early next month. That adds pressure on Mr. Smith, who has pledged to work fast to act even faster, current and former prosecutors say.
“Usually the lead federal prosecutor just picks up the phone and tries to work it out with the local DA, but obviously in a case of this magnitude it’s much more difficult,” said Channing D. Phillips, the district’s assistant attorney-in-fact of Columbia from March to November 2021. “The stakes are incredible not to sort things out.”
The investigative efforts are by no means the same. Mr Smith’s responsibilities extend to other areas, notably investigating whether Mr Trump mishandled classified documents found at his Mar-a-Lago estate after leaving office.
The Jan. 6 state investigation focuses on several allegations, according to two law enforcement officials: wire fraud for emails sent between those pushing the bogus election scheme; mail fraud to send voters’ names to the National Archives and Records Administration; and conspiracy covering the coordination effort. (A fourth possible charge, obstruction of an official process before Congress, was in many cases brought against participants in the attack on the Capitol.)
And some of Ms. Willis’ work has been more narrow-minded in nature, including a review of false statements made by Trump allies like Mr. Giuliani at state legislative hearings in December 2020.
Justice Department officials said the indictment by Manhattan District Attorney Alvin L. Bragg against Mr. Trump for making a hush money payment to a porn star will have little impact on their investigations. Federal prosecutors in Manhattan refrained from bringing a similar case.
But the Georgia investigation is completely different. The Department of Justice does not have the authority to direct local prosecutors to resign in areas of overlapping investigations, unless their investigations conflict with federal law. Indeed, internal departmental rules advise against charging the subjects of previous government prosecutions.
In addition, there is “no formal rule book” to regulate jurisdictional issues or decide the chronological order of prosecutions, and disputes are usually settled informally as they arise, on an ad hoc basis, said Preet Bharara, a former US attorney for the Southern District of New York.
Local and state prosecutors routinely work together to coordinate indictment decisions, depending on which jurisdiction offers a better chance of a conviction or a harsher sentence. But in many high-profile cases, prosecutors view dueling investigations as a nuisance or even a danger.
Witnesses, even honest ones, sometimes offer different testimonies when questioned by attorneys representing different offices. Differences between state and federal laws can create damaging conflicts over strategy and priorities. Then there’s what is known as “witness fatigue,” when key actors simply become tired or uncooperative after running gantlets from government inquisitors.
Fulton County prosecutors are conducting a wide-ranging investigation that includes calls by Mr. Trump to pressure state officials and efforts by the former president and his allies to replace legitimate Georgia voters with pro-Trump proxies. Last year, Ms. Willis’ office attempted to interview two key figures who had served at the Justice Department: Richard Donoghue, the acting assistant attorney general in the waning days of the Trump administration, and Jeffrey Clark, an assistant attorney general who headed the department’s environmental division.
Shortly after Mr. Trump left office, it emerged that Mr. Clark had attempted to bypass department heads and aid Mr. Trump’s efforts to stay in power. He even drafted a letter to be sent to Georgia lawmakers, falsely claiming the Justice Department had “identified significant concerns” that would affect the state’s election results and urging lawmakers to call a special session.
Mr Donoghue was alarmed when he saw the draft, according to a statement he submitted to the House Committee investigating the Jan. 6 attack.
Aids to Ms. Willis filed what are known as Touhy motions, named after a 1951 Supreme Court case. Under the rule, local prosecutors must obtain permission from the Justice Department to question their current or former employees. But the applications were ultimately rejected.
It’s not clear why the department denied the applications. But both men were at the center of an investigation into Mr Clark’s conduct by the Justice Department’s inspector general, which was subsequently turned over to Mr Smith’s team.
A spokesman for Mr. Smith declined to comment.
Fulton County prosecutors also declined to comment. The forewoman of a special grand jury in Atlanta, which in January issued a largely classified advisory report, seemed to hint in an interview this year that she had recommended impeaching Mr Trump.
The Atlanta case has put additional pressure on Mr. Smith. Justice Department officials said they aim to make charging decisions in the spring or summer, before the 2024 election gets into full swing – raising questions about whether Mr Smith will seek charges before Ms Willis does.
“If I’m looking at this as a federal prosecutor, I would just want to start there,” said Joyce Vance, a law professor at the University of Alabama who served as a U.S. attorney in Birmingham from 2009-2017. “I don’t want to have to try my case after it’s already been brought to state court. They really want to go first to avoid witness issues and other technical or legal issues.”
If Ms. Willis moves in first, Mr. Smith’s team would need to seek department approval to waive an internal rule that precludes “multiple prosecutions and punishments for essentially the same act(s)”.
That’s not a high bar, however. Mr. Smith would only need to show that the state case does not fully cover all of the issues discussed in a federal case. The recent liberation is believed to have been used to secure hate crime convictions against three men who murdered Ahmaud Arbery, a young black man who was jogging through their neighborhood.
John P. Fishwick Jr., a former US Attorney for the Western District of Virginia, said he has often asked local prosecutors to resign if he felt their investigations conflicted with his. He suggested that Mr. Smith might at least consider asking Ms. Willis to do the same.
“DOJ and prosecutors don’t play well in the same sandbox, but at the end of the day, if the DOJ gets into a tug of war, it will usually win,” he said. “The federal government just has more power when it comes to persuading witnesses, more power to put people on a case, and more momentum in general.”
While prosecutors should resolve disputes over access to witnesses and documents, it is vital that the two efforts are viewed as independent and fact-based and not a “witch hunt,” as Mr. Trump has previously described all investigations into him, officials at the Ministry of Justice.
“I don’t think they would coordinate things like the timing or the language of the charges or anything like that — although that wouldn’t be illegal,” said Mary McCord, a former senior official in the department’s National Security Division who is now a visiting professor at the Georgetown University Law Center.
“But the goal here is to avoid any appearance that they are coordinating law enforcement for political ends,” Ms McCord added.
Glenn Thrush and Adam Goldman reported from Washington, Danny Hakim from New York.
