Georgia Trump Investigation Poses Challenges for Federal Prosecutors

WASHINGTON — The Fulton County district legal professional’s investigation into former President Donald J. Trump’s effort to overturn the 2020 election in Georgia is nearing a call level, posing recent challenges for federal prosecutors contemplating charging him in reference to the Jan. 6, 2021, assault on the Capitol.

The long-running investigation by Fani T. Willis in Atlanta considerably overlaps with the broader inquiry into Mr. Trump’s conduct by the particular counsel, Jack Smith, in Washington. Each depend on related documentary proof, a few of the identical felony targets and a small, shared pool of witnesses with data of the previous president’s actions and intent.

Mr. Trump’s critics imagine the concurrent investigations present assurance that the previous president and designers of the scheme to put in faux electors in battleground states, together with Rudolph W. Giuliani and John C. Eastman, shall be held to account.

However additionally they create problems for 2 aggressive investigative groups pursuing a few of the identical witnesses, rising the potential for discrepancies in testimony that Mr. Trump’s legal professionals might exploit. Ms. Willis and her workforce have a head begin, having begun their work in February 2021, and are anticipated to hunt indictments early subsequent month. That raises the stress on Mr. Smith, who has pledged to work rapidly, to maneuver even sooner, in keeping with present and former prosecutors.

“Usually, the lead federal prosecutor simply picks up the cellphone and tries to work it out with the native prosecutor, but it surely’s clearly much more troublesome in a case of this magnitude,” mentioned Channing D. Phillips, who served as performing United States legal professional for the District of Columbia from March to November 2021. “The stakes of not working issues out are extremely excessive.”

The investigative efforts are in no way the identical. Mr. Smith’s purview extends into different areas, most notably the investigation into whether or not Mr. Trump mishandled categorized paperwork that had been discovered at his Mar-a-Lago property after he left workplace.

The federal investigation into Jan. 6 focuses on a number of expenses, in keeping with two regulation enforcement officers: wire fraud for emails despatched between these pushing the false electors scheme; mail fraud for sending the names of electors to the Nationwide Archives and Data Administration; and conspiracy, which covers the coordination effort. (A fourth potential cost, obstruction of an official continuing earlier than Congress, has been utilized in many instances introduced towards members within the Capitol assault.)

And a few of Ms. Willis’s work has been extra parochial in nature, together with a overview of false statements that Trump allies like Mr. Giuliani made at state legislative hearings in December 2020.

Justice Division officers mentioned the indictment of Mr. Trump by the Manhattan district legal professional, Alvin L. Bragg, over a hush cash fee to a porn star could have little impact on their investigations. Federal prosecutors in Manhattan handed on bringing an analogous case.

However the Georgia investigation is completely totally different. The Justice Division has no authority to order native prosecutors to step apart in areas the place the investigations do overlap, except their investigations battle with federal regulation. In actual fact, inside division guidelines discourage indicting the themes of prior state prosecutions.

Furthermore, there’s “no formal rule guide” for settling jurisdictional questions or for deciding the chronological sequence of prosecutions, and disputes are normally hashed out informally, as they come up, on an advert hoc foundation, mentioned Preet Bharara, a former U.S. legal professional for the Southern District of New York.

Native and federal prosecutors routinely work collectively to coordinate charging choices based mostly on which jurisdiction affords higher possibilities of conviction or a stiffer sentence. However in lots of high-profile instances, prosecutors view dueling investigations as a nuisance or perhaps a hazard.

Witnesses, even forthright ones, typically supply totally different accounts when interviewed by legal professionals representing totally different places of work. Variations between state and federal legal guidelines can result in damaging conflicts over technique and priorities. Then there’s what is called “witness fatigue,” when necessary gamers merely develop drained or uncooperative after working gantlets of presidency inquisitors.

Fulton County prosecutors are conducting a wide-ranging investigation that features calls made by Mr. Trump to exert stress on state officers and efforts by the previous president and his allies to exchange respectable electors in Georgia with pro-Trump alternates. Final yr, Ms. Willis’s workplace sought to interview two key figures who had served within the Justice Division: Richard Donoghue, the performing deputy legal professional common within the waning days of the Trump administration, and Jeffrey Clark, an assistant legal professional common who led the division’s environmental division.

Shortly after Mr. Trump left workplace, it emerged that Mr. Clark had tried to avoid the division’s leaders and support Mr. Trump’s efforts to remain in energy. He even drafted a letter that was to have been despatched to lawmakers in Georgia falsely claiming that the Justice Division had “recognized important considerations” that may have an effect on the state’s election outcomes and urging lawmakers to convene a particular session.

Mr. Donoghue was alarmed when he noticed the draft, in keeping with testimony he offered to the Home committee that investigated the Jan. 6 assault.

Aides to Ms. Willis filed what are often known as Touhy requests, named after a 1951 Supreme Courtroom case. Beneath the rule, native prosecutors are required to get authorization from the Justice Division to query its present or former workers. However the requests had been finally rejected.

It’s not clear why the division rejected the requests. However each males had been on the middle of an investigation into Mr. Clark’s conduct by the Justice Division’s inspector common that was subsequently handed off to Mr. Smith’s workforce.

A spokesman for Mr. Smith declined to remark.

Fulton County prosecutors additionally declined to remark. The forewoman of an Atlanta particular grand jury that issued an advisory report in January, which has remained largely below seal, appeared to trace in an interview this yr that it had advisable that Mr. Trump be indicted.

The Atlanta case has put further stress on Mr. Smith. Justice Division officers have mentioned they wished to make charging choices within the spring or summer season, earlier than the 2024 election kicks into excessive gear — which raises the query of whether or not Mr. Smith will attempt to convey expenses earlier than Ms. Willis does.

“ this as a federal prosecutor, I might simply need to go first,” mentioned Joyce Vance, a College of Alabama regulation professor who served because the U.S. legal professional in Birmingham from 2009 to 2017. “I don’t need to need to strive my case after it’s already been introduced in a state court docket. You actually need to go first to keep away from issues with witnesses, and different technical or authorized issues.”

If Ms. Willis strikes first, Mr. Smith’s workforce must acquire division approval to waive an inside rule that precludes “a number of prosecutions and punishments for considerably the identical act(s).”

That isn’t thought-about a excessive bar, nonetheless. Mr. Smith would merely have to indicate that the state case didn’t fully cowl all the problems addressed in a federal case. It’s believed that exemption was not too long ago used to acquire a hate crimes conviction towards three males who murdered Ahmaud Arbery, a younger Black man who was jogging by means of their neighborhood.

John P. Fishwick Jr., a former U.S. legal professional for the Western District of Virginia, mentioned he usually requested that native prosecutors step apart when he thought their investigations conflicted together with his. He urged that Mr. Smith might no less than contemplate asking Ms. Willis to do the identical.

“D.O.J. and state prosecutors don’t play properly in the identical sandbox, however on the finish of the day, if it will get right into a tug of conflict, D.O.J. is normally going to win,” he mentioned. “The federal authorities simply has extra energy so far as compelling witnesses, extra energy to assign individuals to a case and extra oomph, basically.”

Whereas prosecutors ought to clear up disputes over entry to witnesses and paperwork, it’s critical that the 2 efforts be seen as impartial and fact-driven and never a “witch hunt,” as Mr. Trump has described all the investigations into him, former Justice Division officers say.

“I don’t suppose they might coordinate on issues like timing or language of the costs or something like that — though that wouldn’t be unlawful,” mentioned Mary McCord, a former high official within the division’s nationwide safety division who’s now a visiting professor at Georgetown College Regulation Middle.

“However the purpose right here is keep away from any look that they’re coordinating prosecutions for political functions,” added Ms. McCord.

Glenn Thrush and Adam Goldman reported from Washington, and Danny Hakim from New York.