Jack Smith, the special counsel investigating former President Donald J. Trump, opened a simplified case against Mr. Trump, accusing him of trying to undermine democracy – with the aim of fast-tracking the case in the presidential election year to bring judgment.
Fani T. Willis, the district attorney in Fulton County, Georgia, chose a completely different strategy in prosecuting Mr. Trump for trying to overturn the results of the 2020 election, indicting 18 co-defendants as well as the former president. Critics said this approach would take significantly longer.
But she has moved with astonishing speed that has surprised both the Trump team and some Justice Department officials — she secured plea agreements from three lawyers allied with Mr. Trump — Kenneth Chesebro, Sidney Powell and Jenna Ellis — within a week.
The developments are undoubtedly good news for Mr Smith. But they also pose logistical and legal challenges as Mr. Smith and Ms. Willis pursue parallel efforts to hold Mr. Trump accountable, according to defense lawyers and former federal prosecutors.
Despite Mr. Trump’s efforts to delay the federal election case until after the 2024 election, the March hearing is still scheduled. The plea agreements and the prospect that more of Mr. Trump’s co-defendants will take the deal have made it nearly impossible to determine when the trial in the Georgia case will begin and has increased the overall uncertainty in both cases.
Here’s what you should know about the impact of the plea deals on the federal case.
Can evidence from Georgia defendants be used against Mr. Trump in his federal trial?
Yes, but it’s complicated.
Any publicly released documents or statements in any case – including court appearances by the Fulton County defendants – may be admissible as evidence in the federal case.
Given the original timeline set by Ms. Willis’s staff and the recent activity sparked by Ms. Powell’s and Mr. Chesebro’s demands for a speedy trial under Georgia law, it remains unlikely that Mr. Trump’s trial will take place in Georgia would take place earlier the federal case.
That means any public statement against Mr. Trump would likely come after Mr. Smith had already made his case, although the situation remains uncertain.
Ms. Willis and her staff have the discretion to decide whether to share with Mr. Smith’s team material that has not been included in the official file, including transcripts and videos of witness interviews and other evidence.
That’s why federal prosecutors in the past, when faced with duplicitous local prosecutions, have pushed to go first – to avoid having to defer to elected district attorneys who are answerable to voters.
The best-case scenario for Mr. Smith would be for Fulton County prosecutors to simply turn over the interview transcripts to the government, said Darryl K. Brown, a law professor at the University of Virginia who teaches courses on evidence and criminal procedure. In that case, the special counsel’s office could subpoena the defendants or other witnesses and ask them under oath whether what they previously said was true.
“The easiest thing would be to call witnesses to the stand and ask them, ‘Do you stand by your testimony?'” he said. “People who work with local prosecutors also tend to work with federal prosecutors.”
However, it is possible that Ms Willis could, in return, ask Mr Smith and his team to share information about their investigation.
This could prove problematic. The judge in the federal election case has already issued a strict protective order that prevents most evidence from being disclosed to people not involved. And federal prosecutors are required to keep statements from grand jurors secret. They can request that the data be shared with local prosecutors, but rarely do so, said Kenneth P. White, a former federal prosecutor.
The Justice Department refused to share any material related to Mr. Trump’s cases outside the department, engaging in a months-long dispute over it with the House committee investigating the Jan. 6, 2021, attack on the Capitol.
“If things fail, Smith could technically subpoena things from Willis,” Mr. White said. “But that’s way too aggressive and he’ll never do that. So they need to sort things out.”
Are Ms. Willis and Mr. Smith coordinating their efforts?
No, contact between the two prosecutors was fairly limited, say people familiar with the situation.
“I don’t know what Jack Smith is doing, and Jack Smith doesn’t know what I’m doing,” Ms. Willis said in the weeks before she filed charges against Mr. Trump. “Honestly, if Jack Smith were standing next to me, I wouldn’t know who he was. I suspect he probably can’t pronounce my name correctly.”
But the recent settlements could change that dynamic, even as Ms. Willis’ team continues to privately emphasize her prosecutorial independence, these people said.
The Department of Justice does not prohibit interactions with other agencies. In fact, the Department’s Procedures Manual encourages early collaboration between federal prosecutors and state and local law enforcement officials to avoid conflict and duplication.
The guidelines are relatively vague but provide guardrails to protect defendants and warn prosecutors that “concurrent proceedings must be managed carefully to avoid allegations of improper release of grand jury materials or abuse of civil process.”
Any evidence Mr. Smith obtains from Georgia will be turned over to the Trump defense team as part of the discovery process.
Can defendants working with Ms. Willis invoke the Fifth Amendment right against self-incrimination in federal court?
Yes, but it may provide limited protection.
If Mr. Smith were to call Mr. Chesebro, Ms. Powell and Ms. Ellis as witnesses against Mr. Trump, they could refuse to testify by exercising their Fifth Amendment rights — even if they had effectively waived those rights in Georgia.
But Mr. Smith was able to counteract that by filing federal charges against them, giving him the same leverage that Fulton County prosecutors had in trying their original plea. And any confessions made on the witness stand in Fulton County could theoretically be used against them by Mr. Smith. Ms. Powell and Mr. Chesebro are already believed to be two of the unnamed co-conspirators in the federal indictment against Mr. Smith.
“Just because they have immunity in Georgia doesn’t mean they have immunity,” Mr. White said in Washington.
Is there a disadvantage for federal prosecutors?
There is no roadmap for prosecuting a former president, let alone prosecuting him for similar crimes simultaneously in two jurisdictions. The Justice Department typically strives to avoid concurrent cases to prevent inconsistencies in witness testimony that can be exploited by the defense to cast doubt on the entire case.
Mr. Trump takes the same approach when former employees or advisers turn against him: He tries to undermine their credibility.
His habit of summoning potential witnesses and co-defendants prompted the judge presiding over his federal trial in Washington to impose a limited gag order – but his legal team will almost certainly focus on weaknesses and inconsistencies in their testimony.
Several former prosecutors noted that the Fulton County indictments, which rely on Georgia’s sweeping anti-crime law, raise many of the same problems raised by other sprawling cases based on the testimony of former associates: Key witnesses have a well-documented history of false allegations make statements.
“There are certainly landmines for Smith,” said John P. Fishwick Jr., who served as U.S. attorney for the Western District of Virginia from 2015 to 2017.
“But let’s be clear: The plea deals are great news for Smith and Willis and terrible news for Trump.”
Richard Fausset, Alan Feuer and Danny Hakim contributed reporting.