In Trump Cases, Different Strategies in Court by Jack Smith and Fani Willis
In Washington, the special counsel is pursuing a streamlined approach and has gotten an early trial date. In Georgia, a more comprehensive indictment faces slower going.
By Glenn Thrush and Danny Hakim
While a federal judge was fast-tracking the start of former President Donald J. Trump’s election interference trial in Washington on Monday, the sprawling prosecution of Mr. Trump and 18 co-defendants by the district attorney in Fulton County, Ga., on similar state charges showed signs of slowing to a slog in Atlanta.
The two cases, stemming from the efforts of Mr. Trump and his allies to overturn the results of the 2020 election, rely on many of the same facts, documents and witnesses. But as Monday’s court skirmishes demonstrated, the approaches of the two prosecutors in charge of the investigations — Jack Smith, the Justice Department’s special counsel, and Fani T. Willis, the district attorney in Fulton County — could not be more different.
Mr. Smith took over the two federal Trump investigations with a promise to move rapidly in hopes of wrapping up legal proceedings before the 2024 election, and the indictment handed down against Mr. Trump on Aug. 1 included just four counts. While it referred to six unindicted co-conspirators, only Mr. Trump was charged.
By contrast, the indictment brought by Ms. Willis includes 41 counts against the former president and encompassed allegations against his long roster of co-defendants. The legal and logistical complexity of the Georgia case came more clearly into focus on Monday, when Mark Meadows, Mr. Trump’s final White House chief of staff, took the stand in an effort to move his case to federal court, underscoring how some of the co-defendants are splintering to pursue their own strategies.
“It’s clear that Jack Smith and the prosecution made the decision to skinny this up,” said Tim Purdon, who served as U.S. attorney for North Dakota from 2010 to 2015. “Lawyers talk about pleadings and cases — is it a rifle shot or a shotgun blast? Smith is a rifle shot, Willis is a shotgun blast. There are advantages and disadvantages to both, but Smith’s strategy is to move fast.”
The two approaches — one streamlined, built with concision and speed in mind, the other more comprehensive in seeking accountability but also more complex to try — represent the divergent experiences, temperaments and timetables of the two prosecutors.
Mr. Smith is operating in a perilous political environment, determined to proceed with tear-off-the-Band-Aid dispatch, even if he has not succeeded in outracing the political calendar, with Mr. Trump’s trial now scheduled to start a day before the Super Tuesday primaries.
Ms. Willis, who began her investigation in early 2021, wants to move quickly to a trial. But she appears less concerned about time pressures, and is well aware that linking Mr. Trump to so many co-defendants could slow down the process substantially.
Mr. Smith’s strategy in the Washington case appeared to pay dividends at the hearing on Monday to determine the schedule of Mr. Trump’s trial on election interference charges. The proceeding was held in a federal courthouse that has been the venue for the trials of Trump supporters involved in the Jan. 6, 2021, attack on the Capitol.
Mr. Trump’s lawyers spent much of the 90-minute hearing arguing that the government’s case was so impossibly complicated that they needed a two-year delay to burrow through the avalanche of evidence. But Judge Tanya S. Chutkan of the Federal District Court in Washington rejected those claims, and set a start date of March 4, 2024 — just two months later than prosecutors had asked for.
While conceding that Mr. Trump’s legal team faced the daunting task of poring through millions of documents, she dismissed the idea that the case was too complex to proceed quickly — in part, she said, because there is just “one defendant.”
Moreover, Judge Chutkan embraced the special counsel’s push for a speedy resolution to the case, saying it served the “public interest” to begin proceedings while the events that day were still fresh in the memory of witnesses and those harmed in the attack.
Determining the parameters of any criminal prosecution — settling on the number of defendants, charges, witnesses and exhibits — is a threshold choice for every prosecutor in an investigation that involves more than one target. The primary considerations in the vast majority of cases revolve around quotidian details of evidence collection, cooperating witnesses and the willingness of a defendant to engage in plea negotiations.
But complex, high-profile cases introduce factors that make decisions more difficult, and decision makers are confronted with trade-offs, current and former prosecutors say.
Mr. Smith has lost his share of high-stakes cases over the years — which, if anything, has further steeled his determination to pursue challenging cases other prosecutors might avoid as too difficult, according to people who have worked with him over the years.
“Smith’s case is built for speed — and he knows that to have indicted the six co-conspirators in addition to Trump would have been enormously cumbersome,” said Harry Litman, who served as U.S. attorney in western Pennsylvania under President Bill Clinton.
“On the other hand, the upside of Willis’s approach is that it creates a favorable dynamic, where you have 18 people scrambling, and they start pointing fingers upward — and begin accusing Trump,” he added.
Despite the prosecutors’ disparate approaches, there is a decent chance that part of Ms. Willis’s prosecution may actually proceed months ahead of Mr. Smith’s. Several defendants, including Mr. Meadows, have filed to move the Georgia case from state to federal court. On Tuesday, Judge Steve C. Jones of the U.S. District Court for the Northern District of Georgia asked prosecutors and defense lawyers for additional briefs on the question by Thursday.
There is not broad consensus among legal analysts on how the judge will rule. But if the case remains in state court, three of the defendants are likely to face trial starting in October.
Kenneth Chesebro, a lawyer who helped develop the so-called fake electors plan, has already been granted an early trial, which is his right under Georgia law. The presiding state judge, Scott McAfee, has said Mr. Chesebro’s early trial dates would not apply more broadly to the other 18 defendants, but on Tuesday, Ms. Willis’s office filed a motion seeking to clarify that ruling in a bid to keep all of the defendants together in a single trial on the faster timeline.
Some other defendants are also seeking a faster trial. Sidney Powell, another lawyer who tried fruitlessly to prove Mr. Trump’s claims of election fraud, has sought the same. Harvey Silverglate, a lawyer for John Eastman, who promoted the idea that Mike Pence, Mr. Trump’s vice president, could block congressional certification of Mr. Trump’s defeat, has said his client will also seek a speedy trial.
Ms. Willis, a Democrat, is a veteran prosecutor who has years of experience bringing complex racketeering cases, with a penchant for slow-simmer investigations.
A decade ago, she made her name as a prosecutor by helping lead a high-profile RICO case against a group of educators in the Atlanta public school system who were involved in a widespread cheating scandal. Her office is currently enmeshed in a sprawling RICO case involving prominent local rappers accused of operating a criminal gang; jury selection has already taken more than seven months in the case, which has even featured legal sparring over evidence of a goat sacrifice.
She was elected district attorney in 2020. One of her earliest hires as an outside consultant was John E. Floyd, who wrote a guidebook on racketeering laws that was published by the American Bar Association and who is now a member of the Trump prosecution team.
Ms. Willis’s staff began examining the Trump matter almost immediately after she took office. From the beginning of her investigation of Mr. Trump and his allies, she raised the possibility of using RICO charges and discussed their advantage in a February 2021 interview, as her inquiry was getting started.
“I always tell people when they hear the word racketeering, they think of ‘The Godfather,’” she said at the time, while noting that RICO charges could also extend to otherwise lawful organizations that are used to break the law.
“If you have various overt acts for an illegal purpose, I think you can — you may — get there,” she said.
Unsurprisingly, not everyone is a fan of her approach, including Mr. Silverglate, the lawyer for Mr. Eastman.
“She would have been much better off with a very simple case, not a telephone book indictment,” he said in an interview.
“To her, being a self-appointed expert in RICO, everything looks like a RICO case, and that’s the problem,” Mr. Silverglate added. “She could have brought a very simple case and has instead brought this monstrosity.”
Mr. Smith’s approach was “simpler and it’s easier for a jury to understand, and it takes less time,” he said. “Do you know what it’s like to be a juror sitting for 18 to 24 months? Do you know how it disrupts their lives? It’s not going to be a representative jury because you’ll have nobody on the jury who has a job.”
Others believe the sprawling case brought by Ms. Willis is appropriate. Norman Eisen, who served as special counsel to the House Judiciary Committee during the first Trump impeachment, called the Willis approach “a state-focused bathyscaph,” referring to a deep-sea submersible, in a recent essay he wrote with Amy Lee Copeland, a former federal prosecutor in Georgia.
The indictment “strongly complements the federal case,” they wrote, by adding “dimensionality, transparency and additional assurance of accountability for the former president and those who betrayed democracy in Georgia.”
Glenn Thrush covers the Department of Justice. He joined The Times in 2017 after working for Politico, Newsday, Bloomberg News, The New York Daily News, The Birmingham Post-Herald and City Limits. More about Glenn Thrush
Danny Hakim is an investigative reporter. He has been a European economics correspondent and bureau chief in Albany and Detroit. He was also a lead reporter on the team awarded the 2009 Pulitzer Prize for Breaking News. More about Danny Hakim