Could Georgia’s Trump case help federal DOJ prosecutors?
ATLANTA — A recent flurry of guilty pleas has strengthened Fulton County District Attorney Fani Willis’ hand as she prosecutes former President Donald Trump and others for their efforts to overturn Georgia’s 2020 presidential election results.
Those plea deals could also have a secondary impact: bolstering federal prosecutors as they pursue their parallel case against the former president. That’s because some defendants who have already agreed to cooperate with Fulton prosecutors are also incentivized to do so with the feds, legal experts say.
The Justice Department’s case, which focuses on Trump’s attempts to cling to power leading up to the deadly insurrection at the U.S. Capitol on Jan. 6, 2021, is speeding toward a trial in early March. With four guilty pleas on the books and more expected to come in the months ahead, the Fulton DA could hold evidence valuable to federal prosecutors.
“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.
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.
By taking a plea agreement in Fulton, the defendants essentially waived their Fifth Amendment rights against selfincrimination. 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 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.