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The author, a former US federal prosecutor and current professor at Columbia Law School, shares insights on the legal implications surrounding the overlapping Georgia indictment against former President Donald Trump and the federal indictment obtained by special counsel Jack Smith.
Even those familiar with the American federal system and its “dual sovereignty” principle, which acknowledges the separate powers of state and federal governments in pursuing criminal prosecutions, may question the potential legal and managerial obstacles arising from the overlap between the Georgia indictment against Trump and the federal indictment by special counsel Jack Smith. These concerns are valid.
The federal indictment accuses Trump, along with unnamed co-conspirators, of orchestrating fraudulent elector slates in seven states, including Georgia, with the intention of overturning the 2020 election. The Georgia indictment, while broader in scope, specifically targets Trump’s alleged enablers and includes additional defendants unique to the state.
Both prosecutors sought to strike a balance between capturing the full extent of Trump’s alleged conspiracy and ensuring a manageable and efficient trial. The mantra at the US attorney’s office in Manhattan, where I previously worked, is “thin to win.” Smith’s indictment appears relatively concise compared to Fulton County district attorney Fani Willis’s indictment. However, since indictments do not provide details on witnesses and evidence, we cannot determine the extent of overlap.
There are precedents of state prosecutors pursuing distinct state interests by prosecuting defendants already facing federal charges or convictions. The possibility of Trump being re-elected and using executive powers to undermine the federal case adds relevance to Georgia’s distinct interest. However, while the specific conflicts between state and federal proceedings are difficult to predict, they appear inevitable.
Trial schedules may not ultimately coincide. The Georgia district attorney may desire a speedy trial, but potential defense efforts to transfer the case to federal court must be addressed. Both sets of prosecutors will also have to navigate Trump’s arguments about his presidential status granting immunity to his statements and actions, as well as those of others involved. It is unlikely that both cases will be trial-ready simultaneously.
Nevertheless, some friction is to be expected. Digital evidence can be easily shared, but witness testimonies and memories can be influenced by investigations and trial preparations. Prosecutors must tread carefully to avoid withholding information that could benefit the other side while also avoiding excessive collaboration that would merge the two teams and render each responsible for the other’s files. Inconsistencies in a witness’s testimony during the first trial can be used to challenge their credibility in the second.
Another complex scenario involves Mark Meadows, Trump’s former chief of staff, who reportedly provided valuable testimony to the federal grand jury. If the special counsel requires Meadows’ testimony at trial, it can only be obtained in person due to the “confrontation clause” of the constitution’s sixth amendment. Now that Meadows faces charges in Georgia, he may assert his fifth amendment right against self-incrimination if called as a witness in the federal trial. The special counsel could overcome this by securing an immunity order to prevent Meadows’ statements from being used against him. However, such an order would disadvantage the Georgia prosecutors, particularly regarding Meadows, if the federal trial precedes the state trial.
During the Iran-Contra hearings in 1987, Congress granted Oliver North immunity, and prosecutors in his criminal case made significant efforts to shield themselves from exposure to his televised testimony. Nevertheless, North’s conviction was overturned on appeal due to witnesses being influenced by his testimony. If Meadows received immunity when testifying before the federal grand jury via a simple agreement, which does not protect against the Fulton County district attorney’s use of his statements, the district attorney will have to demonstrate that her case is untainted by exposure to Meadows’ secret grand jury testimony or derived evidence.
None of this critique implicates Smith or Willis, as both are simply fulfilling their duty to hold Trump accountable for his attack on American democracy and the constitution. It serves only to underscore the numerous challenges that lie ahead.
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