ATLANTA — The blockbuster 37-count federal indictment charging Donald Trump with mishandling hundreds of classified government documents likely won’t affect the substance of Fulton County’s probe into the former president’s push to overturn Georgia’s election results in 2020. But it could alter the timeline of a potential trial should District Attorney Fani Willis secure state charges against the Republican, according to legal analysts.
The Georgia activities Willis is investigating are vastly different from the ones at the heart of the Justice Department’s case, which allege Trump illegally kept sensitive documents at his Florida home after he left office and obstructed the government’s efforts to reclaim them.
“I don’t think that Fani Willis is going to drop whatever she’s doing,” said John Malcolm, a former federal prosecutor now at the conservative Heritage Foundation.
Still, some observers say Trump’s indictment on Thursday in the federal case, which came a little more than two months after he was charged with separate state crimes in Manhattan, helps take some of the heat of Willis, who has heavily suggested she will indict Trump in August.
“It relieves some of the intense political pressure that will be focused on the DA and her office,” including hate mail and threats of violence, said Norm Eisen, who served as special counsel to the Democrats on the House Judiciary Committee during Trump’s first impeachment. It “will allow the DA to handle the case in more of a normal fashion, if there’s any such thing if you’re trying a former president, especially one named Donald Trump.”
A spokesman for the Fulton DA’s office declined to comment for this story. Trump’s Atlanta-based legal team also declined to comment.
Willis’s inquiry focuses on calls Trump and his allies made to pressure Georgia officials to reverse Joe Biden’s narrow win in the state; the appointment of a slate of “alternate” Republican electors; and the unauthorized access of sensitive voter data in Coffee County, Georgia, among other events between Nov. 2020 and Jan. 2021.
There could be more overlap with a second federal investigation spearheaded by Justice Department special counsel Jack Smith related to Trump’s attempts to cling to power in the lead-up to the Jan. 6 insurrection at the U.S. Capitol. But even if Georgia-based events play into a second federal indictment down the line, there is no requirement that Fulton prosecutors step aside for the feds.
Where this week’s federal charges could have the biggest effect on the Fulton inquiry are on the timing and logistics of a potential trial, legal analysts said. The indictments in federal court and New York raise the possibility that a Georgia trial may need to wait until well into 2024, deep into the political calendar. Trump is again running for president and most polls show him dominating a crowded Republican field.
There could very well be a scenario in which prosecutors in New York, Georgia and the Justice Department will be competing for courtroom time with the same defendant.
While the timing for the Justice Department case is currently unclear (Trump is scheduled to appear at the federal courthouse in Miami on Tuesday afternoon), the New York trial will kick off in March. Meanwhile, states will be holding their presidential primaries through early June, and the GOP is set to formally select its nominee at the Republican National Convention in Milwaukee in mid-July 2024.
“Usually in these situations where a defendant has cases in multiple jurisdictions, it’s whoever gets to him first starts,” said former DeKalb County DA Robert James. “The federal case may or may not move faster, but the reality is that if a federal trial is scheduled the same time as a state trial, a federal trial will go first.”
While Willis could run a potential Trump indictment to a grand jury whenever she’d like, it could take months or longer to schedule a trial if charges are handed down. The DA must turn over background materials to his attorneys, who need time to pore over the documents and file any pre-trial motions. It will be up to the judges overseeing the cases to schedule trials and be mindful of the other proceedings.
“Obviously a defendant needs to have enough time to meet with his attorneys to adequately prepare for any trial. So I think that the judges in these cases will be cognizant of that, and they won’t schedule hearings or a trial at the same time,” Malcolm said.
Some analysts believe the New York and federal cases could be resolved much faster in court given that they appear to involve fewer players than the sweeping, multi-defendant racketeering case Willis is considering.
The fact that Fulton may be the third jurisdiction to bring charges against Trump is a surprise to some observers. Early this year, it appeared that Willis was farther along in the investigative process than her peers in the Manhattan DA’s office or the Justice Department.
But recent court filings from Willis’s office have suggested that prosecutors are still collecting new information ranging from interviews with witnesses — notably, the DA recently cut immunity deals with at least eight “alternate” GOP electors — to subpoenas for documents, including with two data companies that vetted fraud claims for Trump’s campaign in late 2020.
Willis has long suggested that she’s eyeing Georgia’s broad racketeering law to potentially charge a constellation of people for engaging in a pattern of illegal activity to influence the state’s 2020 election. RICO charges often require prosecutors to take longer to weave together a narrative.
“The 2020 election interference is one of the most complex alleged criminal schemes in American history and one of the most important ones,” said Eisen. “You have got to get it right.”
“No other prosecutor,” he added, “has moved on charges in that case despite the fact that there are potential federal and other state ones. That’s a testament to how hard the case is. (Willis is) taking the time to get it right.”
The Atlanta Journal-Constitution has been providing unparalleled coverage of the Georgia criminal investigation into Donald Trump and his allies for their efforts to overturn the state’s 2020 election. The AJC has closely followed the Fulton County probe, including developments involving the special purpose grand jury which spent eight months investigating the activities of the former president, supporters and aides. The latest federal indictment for Trump could be a prelude to criminal charges this summer in Fulton County.