Fulton County District Attorney Fani Willis at the Fulton County Courthouse on August 30, 2022 in Atlanta, Georgia. (Audra Melton/The New York Times)
WASHINGTON — The Fulton County District Attorney’s investigation into former President Donald Trump’s efforts to overturn the 2020 Georgia election is nearing a decision point and posing new challenges for federal prosecutors who are considering prosecuting him in connection with the April 6 attack. January 2021 at the Capitol to impeach.
The long-running Atlanta investigation into Fani Willis essentially overlaps with Special Counsel Jack Smith’s broader investigation into 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 investigation offers reassurance that the former president and architects of the plan to install fake voters in battleground states, including Rudy Giuliani and John Eastman, will be held accountable.
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But they also create complications for two aggressive investigative teams pursuing some of the same witnesses and raise the possibility of testimony discrepancies that Trump’s attorneys could exploit. Willis and her team have a head start, having started work in February 2021, and are expected to file charges early next month. That adds pressure on Smith, who has pledged to work fast to move 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 a lot more difficult,” said Channing Phillips, who served as assistant U.S. attorney for the District of Columbia March to November 2021. “The stakes are incredibly high in not getting things sorted out.”
The investigative efforts are by no means the same. Smith’s jurisdiction extends to other areas — notably investigating whether Trump mishandled classified documents found at his Mar-a-Lago, Florida, estate after leaving office.
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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 Willis’ work has been narrow-minded in nature, including a review of false statements made by Trump allies like Giuliani at state hearings on the December 2020 bill.
Justice Department officials said the indictment of Trump in New York by Manhattan District Attorney Alvin Bragg for paying hush money to a porn actress will have little impact on their investigation. 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 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, Willis’ office attempted to interview two key figures who had served at the Justice Department: Richard Donoghue, the acting assistant attorney general in the final days of the Trump administration, and Jeffrey Clark, an assistant attorney general who headed the department’s environmental division.
Shortly after Trump left office, it emerged that Clark had attempted to bypass ministry leadership and support 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.
Donoghue was alarmed when he saw the draft, according to a statement he submitted to the House committee investigating the Jan. 6 attack.
Aides to Willis filed what are known as Touhy motions, named after a 1951 Supreme Court case. Under the rule, local prosecutors must obtain authorization from the Justice Department to interview their current or former employees. But the applications were ultimately rejected.
It’s not clear why the department rejected the applications. But both men were the focus of an investigation into Clark’s conduct by the Justice Department’s inspector general, which was subsequently turned over to Smith’s team.
A spokesman for Smith declined to comment.
Fulton County prosecutors also declined to comment. The forewoman of a special grand jury in Atlanta, which issued a largely classified advisory report in January, seemed to hint in an interview this year that she had recommended impeaching Trump.
The Atlanta case has put additional pressure on Smith. Justice Department officials said they plan to make charging decisions in the spring or summer before the 2024 election gets into full swing – raising questions about whether Smith will seek charges before 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 Willis acts first, Smith’s team would need to seek Department approval to waive an internal rule barring “multiple prosecutions and punishments for essentially the same act(s).”
That’s not a high bar, however. Smith would only need to demonstrate that the state case does not fully cover all of the issues discussed in a state 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 Fishwick Jr., a former US Attorney for the Western District of Virginia, said he has often asked that local prosecutors resign if he felt their investigations conflicted with his. He suggested that Smith might at least consider asking 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 powers to persuade witnesses, more powers to put people on a case, and generally more momentum.”
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, rather than a “witch hunt,” as Trump has described all investigations into him, the former Attorney General, as saying Officer.
“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,” McCord added.
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