The guilty pleas present a host of challenges as state and federal prosecutors engage in parallel efforts to hold Donald J. Trump accountable, defense lawyers and former federal prosecutors say.
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Jack Smith, the special counsel investigating former President Donald J. Trump, is not coordinating efforts with prosecutors in Georgia.
Jack Smith, the special counsel investigating former President Donald J. Trump, brought a streamlined case against Mr. Trump in accusing him of trying to subvert democracy — with the goal of moving the case rapidly to trial in a presidential election year.
Fani T. Willis, the district attorney in Fulton County, Ga., chose a starkly different strategy in prosecuting Mr. Trump for seeking to overturn the results of the 2020 election, indicting 18 co-defendants as well as the former president. Critics said that approach would take far longer.
But she has moved with a stunning swiftness that has taken both the Trump team and some Justice Department officials by surprise — obtaining plea deals from three lawyers aligned with Mr. Trump — Kenneth Chesebro, Sidney Powell and Jenna Ellis — in the space of a week.
The developments are, without a doubt, good news for Mr. Smith. But they also present logistical and legal challenges as Mr. Smith and Ms. Willis engage in parallel efforts to hold Mr. Trump accountable, according to defense lawyers and former federal prosecutors.
Despite Mr. Trump’s efforts to postpone the federal election case until after the 2024 election, it is still scheduled to go to trial in March. The plea agreements, and the prospect that even more of Mr. Trump’s co-defendants will cut deals, have made it nearly impossible to determine when the trial in the Georgia case will begin, and have increased overall uncertainty about both cases.
Here is what to know about the impact of the plea deals on the federal case.
Can evidence from defendants in Georgia be used against Mr. Trump in his federal trial?
Yes, but it is complicated.
Any publicly released documents or statements in all of the cases — including court appearances by the Fulton County defendants — can be admissible as evidence in the federal trial.
It remains unlikely, given the initial timetable set by Ms. Willis’s staff, and the recent flurry of activity spurred by demands from Ms. Powell and Mr. Chesebro for a speedy trial under Georgia law, that Mr. Trump’s Georgia trial would take place before the federal case.
That means any public testimony against Mr. Trump would probably come after Mr. Smith had already brought his case, although the situation remains fluid.
Ms. Willis and her staff have discretion when it comes to deciding whether they will share material that has not entered the official record, including transcripts and video of witness interviews and other evidence with Mr. Smith’s team.
That is why federal prosecutors, when confronted with dual-track local prosecutions in the past, have pushed to proceed first — to avoid having to defer to elected district attorneys answerable to voters.
The best-case scenario for Mr. Smith is that Fulton County prosecutors will simply hand over interview transcripts to the government, said Darryl K. Brown, a University of Virginia law professor who teaches courses on evidence and criminal procedure. If that happens, the special counsel’s office could then subpoena the defendants, or other witnesses, and ask them under oath if what they said previously was truthful.
“The easiest thing would be to call witnesses to the stand and ask them, ‘Do you stand by your statement?’” he said. “People who cooperate with local prosecutors will also tend to cooperate with federal prosecutors.”
It is possible, however, that Ms. Willis will ask Mr. Smith and his team to share information about their investigation, as a reciprocal gesture.
That could prove problematic. Already, the judge in the federal election case has imposed a robust protective order that shields most evidence from being given to people who are not parties to it. And federal prosecutors are bound to keep testimony before grand juries secret. They can request that it be shared with local prosecutors but seldom do, said Kenneth P. White, a former federal prosecutor.
The Justice Department has been resistant to sharing any material on Mr. Trump’s cases outside the department, engaging in a monthslong scrap with the House committee investigating the Jan. 6, 2021, attack on the Capitol, over doing so.
“If things break down, Smith could, technically, subpoena stuff from Willis,” Mr. White said. “But that’s much too aggressive, and he’s never going to do that. So they have to work things out.”
Are Ms. Willis and Mr. Smith coordinating their efforts?
No, contact between the two prosecutors has been fairly minimal, according to 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 brought charges against Mr. Trump. “In all honesty, if Jack Smith was standing next to me, I’m not sure I would know who he was. My guess is he probably can’t pronounce my name correctly.”
But the recent plea deals could change that dynamic, even though Ms. Willis’s team continues to privately stress their prosecutorial independence, those people said.
The Justice Department does not prohibit interactions with other offices. In fact, the department’s procedural handbook encourages early cooperation between federal prosecutors and officials from state and local law enforcement agencies to avoid conflicts and duplications of effort.
The guidelines are relatively vague, but include guardrails intended to protect defendants, warning prosecutors that “parallel proceedings must be handled carefully in order to avoid allegations of improper release of grand jury material or abuse of civil process.”
Whatever evidence Mr. Smith obtains from Georgia will be turned over to the Trump defense team as part of the discovery process.
Can defendants who cooperate with Ms. Willis assert the Fifth Amendment right against self-incrimination in federal court?
Yes, but it might offer limited protection.
If Mr. Smith were to subpoena Mr. Chesebro, Ms. Powell and Ms. Ellis as witnesses against Mr. Trump, they could refuse to testify by exercising their Fifth Amendment rights — even though they had effectively waived those rights in Georgia.
But Mr. Smith could counter by bringing federal charges against them, giving him the same leverage Fulton County prosecutors had when negotiating their original plea. And any admissions made on the stand in Fulton County could, in theory, be used against them by Mr. Smith. Ms. Powell and Mr. Chesebro are already believed to be two of the unnamed co-conspirators in Mr. Smith’s federal indictment.
“Just because they have immunity in Georgia doesn’t mean they have immunity” in Washington, Mr. White said.
Is there a downside for federal prosecutors?
Possibly.
There is no road map for indicting a former president, much less simultaneously prosecuting one for similar crimes in two jurisdictions. The Justice Department typically seeks to avoid concurrent cases to prevent discrepancies in witness testimony that can be exploited by the defense to seed doubt about the entire case.
Mr. Trump has adopted the same approach when former aides or advisers turn on him: He tries to undermine their credibility.
His habit of calling out potential witnesses and co-defendants prompted the judge presiding over his federal case in Washington to impose a limited gag order — but his legal team will almost certainly zero in on weaknesses and discrepancies in their testimony.
Several former prosecutors noted that the Fulton County indictments, which rely on Georgia’s expansive anti-racketeering law, presented many of the problems posed by other sprawling cases that rely on the testimony of former allies: The most important witnesses have a well-documented history of making false statements.
“There are land mines for Smith, for sure,” 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.
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
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Source: nytimes.com
