Two Trump Indictments For Trying to Overturn an Election. Two Very Different Strategies.
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Special Counsel Jack Smith and Fulton County District Attorney Fani Willis are each prosecuting Donald Trump for the same fundamental alleged crime: conspiring to overturn the 2020 election and cling to power despite knowing he lost. But they are taking fundamentally different approaches, made clear in the indictments they secured against the former President this month. Whereas Smith is pursuing a narrow set of four charges against Trump in federal court, Willis has produced a sprawling and expansive case in Georgia that charges Trump and 18 of his associates with a grand total of 41 criminal counts.
The contrast signifies the diverging strategies at the heart of their historic and politically combustible legal cases. Both are grappling with the complexity of prosecuting a former President who is also a leading presidential candidate in the next election—except they are not necessarily navigating the same set of headwinds.
If Trump reclaims the White House, he could potentially exert executive power to inoculate himself from federal criminal vulnerability, such as attempting to pardon himself or appointing an attorney general who will quash the charges against him. That may be why Smith brought forth a lean indictment that he hopes can get to trial quickly, according to former federal prosecutors. “There’s a race against the clock,” says Barbara McQuade, a former U.S. Attorney, referring to Smith’s case. “In Georgia, that’s not really the case. No attorney general of the United States can shut down a state court investigation. So this case can proceed, even if Trump is elected.”
That may also help to explain why Smith eschewed charging Trump with inciting an insurrection on Jan. 6, 2021, when a mob of his supporters stormed the U.S. Capitol. Indicting him on those grounds, legal experts say, would tangle the prosecution in First Amendment arguments that could provide Trump more room to maneuver. Instead, Smith limited the 45-page indictment to the four counts of conspiracy to defraud the government, conspiracy against the right to vote, conspiracy to obstruct an official proceeding, and obstruction of an official proceeding. While Smith listed six unnamed and unindicted co-conspirators, legal analysts suspect he left them untouched for now to expedite the case. He could charge them down the road, or try to flip them as government witnesses against Trump in the intervening months.
Willis, for her part, charged Trump with 13 criminal counts, including soliciting a public official to violate his oath of office, conspiring to commit forgery in the first degree, conspiring to file false documents, and making false statements. Moreover, she charged Trump and allies such as former White House Chief of Staff Mark Meadows and former New York City mayor Rudy Guiliani with orchestrating a criminal scheme to subvert the election results. They collectively face a range of charges but are all being prosecuted under Georgia’s anti-racketeering laws, what are known in legal parlance as RICO statutes, which have typically been used to prosecute members of the mob.
“She named those defendants because she has to be able to show the criminal enterprise,” says Anna Cominsky, a professor at New York Law School. “She has to show the overt acts of the participants. By naming these people, and saying, here’s what each of them did, either alone or collectively, that makes this a criminal enterprise. That’s what’s going to prove her case.”
While Willis has said she wants to try the case within the next six months, former prosecutors suspect that’s not a realistic timeline, especially given the number of co-defendants.
In fact, the case is unlikely to be resolved before voters cast ballots next year. “When you have 19 total defendants, you will have 19 potential motions,” says Jeremy Saland, a former Manhattan prosecutor. “You’re going to have motions to sever. You’re going to potentially have 19 motions to dismiss.” Willis has indicated she will push to try them all together, but the co-defendants are likely to seek separate trials, a decision that can slow down the process and that will ultimately be made by the judge. “I think that Jack Smith knew what he wanted, and he wanted to do it effectively,” Saland adds. “He wants to get this indictment rolled out and a potential trial in advance of the election.”
A federal judge will determine when the trial starts. Smith has asked to begin the trial on charges that Trump illegally plotted to nullify the election on Jan. 2, 2024, two weeks before the Iowa caucuses. Trump’s team has already sought to push that trial back, and most former prosecutors suspect they will successfully postpone it, as defendants are often able to procure trial delays, especially when there’s a voluminous amount of evidence presented through discovery. The government will also have to reckon with Trump’s packed courtroom itinerary over the next year while he faces multiple criminal indictments concurrently, including in a separate Special Counsel case alleging that he mishandled classified documents.
But Smith will face another complication if Trump’s lawyers can shelve the matter long enough—the looming presidential election in which the defendant could be the Republican nominee. Trump is currently leading the GOP primary by more than 40 points in most polls. “Smith is keeping this trim and limited to Trump, because he really does want to take one of these two cases to trial before the next general election,” says David Weinstein, a former assistant U.S. attorney, “and because of the policies and practices of the Department of Justice, where they don’t want to be perceived as influencing an election. He wants to get his prosecution over and done before you get too close to the next general election.”
Meanwhile, Trump is expected to stand trial in March on charges from the Manhattan District Attorney that he falsified business records. And a federal judge overseeing the case alleging that he hoarded national security secrets at his Mar-a-Lago Club has set a trial date for May 2024. Trump had asked for an indefinite postponement in the Mar-a-Lago documents case, saying it interfered with his campaign schedule, but Judge Aileen Cannon denied the request.
While Smith will be racing to secure convictions in the federal cases against Trump, Willis may be able to proceed with her prosecution in 2025 no matter the outcome of the next election. It’s a reality that gives her the latitude to pursue a wide-ranging case from the outset. Should Trump win the 2024 election, his lawyers could argue that he can’t go on trial as a sitting president, but there’s no guarantee such a maneuver could work, according to McQuade. Willis’s case could stretch on for years, potentially making it the last-resort legal instrument that can hold those who tried to subvert American democracy accountable.
“Rather than try to do this sort of streamlined one-defendant indictment, she charged them all with the full scope of all of the conduct,” McQuade says. “She says she’d like to try this case in six months, but realistically, she probably knows that’s not likely. She’s in it for the long haul.”
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