WASHINGTON — The first major criminal charges that Donald Trump could face for interfering in the 2020 election might come from Atlanta — and what happens in Georgia isn’t expected to stay in Georgia.
Fulton County District Attorney Fani Willis said her decision is “imminent” on whether to indict the former president, which would make him the first U.S. president charged with a crime. That decision will have a ripple effect on the Justice Department’s special counsel probe and other investigations circling Trump.
If Willis goes first, that case would road test possible testimony, helping to determine what evidence holds up in court and providing a blueprint for prosecutions involving other battleground states where Trump and his supporters tried to undermine President Joe Biden’s win.
Legal experts say nothing stops a U.S. special counsel overseeing the federal Trump probe from pursuing similar charges at the federal level, regardless of what Willis ultimately does.
“There’s no double-jeopardy problem here,” said Stephen Vladeck, a law professor at the University of Texas. “For better or worse, the Supreme Court just reiterated the so-called ‘separate sovereigns’ doctrine, which leaves states and the federal government free to prosecute the same unlawful conduct, and free to decide how to do so as well.”
The Justice Department is watching Willis’ next move to better understand how her prosecution affects their case, according to current and former department officials. Her case is likely to present evidence and testimony that poses risks and rewards, depending on whether it holds up under court scrutiny, the officials said.
If Trump allies also are indicted, it raises the potential for them to flip and cooperate with investigators, they said.
Attorney General Merrick Garland appointed a special counsel in November to take over the existing federal probes into efforts by Trump and his allies to overturn the 2020 presidential election after Trump declared he was running for the GOP nomination again in 2024 — setting up a possible rematch with Biden. Special counsel Jack Smith has continued to explore pressure on local election officials and efforts to create fake slates of electors in battleground states, among other actions, parallel to Willis’s case.
Although federal and state law enforcement officials can team up, Willis isn’t required to consult with the feds before making a move.
“Fulton County is not subordinate,” said Randy Chartash, a former federal prosecutor in Atlanta.
Willis appears to be further along, having recently wrapped up a special grand jury investigation. She’s spent two years investigating Trump and several allies for violating Georgia’s election laws, as well as for possible conspiracy and racketeering offenses.
Among other matters, she’s probing the Jan. 2, 2021, phone call in which Trump asked Republican Secretary of State Brad Raffensperger to “find 11,780 votes” — the amount the former president needed to overturn Biden’s victory in Georgia.
There’s already some overlap in the parallel probes.
One of Smith’s first moves was to subpoena Raffensperger, asking him for records of communications with Trump, his 2020 campaign and 19 conservative attorneys and advocates. Subpoenas also were sent to the Cobb County Board of Elections in Georgia, as well as to local election officials in other swing states.
Smith, who is also investigating if Trump mishandled classified materials, has a much broader purview than Willis. He could bring charges based on illegal actions related to the election that took place in multiple states.
The special counsel’s office declined to comment for this story, as did the Fulton County district attorney’s office.
Willis is marching ahead with her case regardless of Justice Department activity, as is her standard practice, according to Riah Greathouse, an Atlanta attorney who worked with Willis for three years in the district attorney’s office.
“She’s going to go wherever the evidence points her and she’s unapologetic about it,” Greathouse said. Regardless of the “national ramifications” of a prosecution related to the 2020 election, Greathouse said, “ultimately they’re talking about state law here.”
One tricky issue that Willis and the Justice Department may need to resolve is how to handle the same individuals when it comes to prosecution or cooperation agreements.
“That can force some hard choices on defendants and their attorneys about whether to resolve matters with one set of government enforcers while another set of prosecutors might still be waiting in the wings,” said Murad Hussain, a white-collar partner at Arnold & Porter law firm in Washington and an adjunct professor of trial practice at the Georgetown University Law Center.
Chartash said that traditionally there is a “good line of communication” between the U.S. attorney’s office in Atlanta and the Fulton County district attorney’s office. More resources make for better investigations, he said, and both entities benefit by making sure witnesses aren’t providing inconsistent testimony across federal and state probes — something a good defense lawyer could exploit.
“I wouldn’t necessarily say that this case would follow these sort of norms because there’s nothing about these cases that are normal,” Chartash said.
(With assistance from Greg Farrell.)