'Cliffs Notes' versus 'encyclopedic': Report contrasts Smith’s and Willis’ Trump election indictments

16 August 2023

Donald Trump is the first former president in the United States' 247-year history to face four criminal indictments while being the clear frontrunner in his party's presidential primary. The fourth indictment came down on Monday night, August 14, when Fulton County, Georgia District Attorney Fani Willis announced that Trump and 18 of his allies had been indicted in connection with their efforts to overturn the 2020 election results — which is also the focus of a separate prosecution at the federal level by special counsel Jack Smith for the U.S. Department of Justice (DOJ).

Willis' case is focused heavily on Trump's actions in Georgia, one of the states that now-President Joe Biden won — while Smith's addresses Georgia but is very much a national case. However, the differences between the cases go beyond the fact that one is a federal prosecution and the other is a State of Georgia indictment.

In an article published by the Washington Post on August 15, reporters Amy Gardner, Holly Bailey, Amber Phillips and Shayna Jacobs stress that the approaches with the two indictments are quite different — and that Willis' case is far from a carbon copy of Smith's.

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"Charges against former President Donald Trump and a raft of others in Fulton County, GA over their alleged efforts to overturn his 2020 defeat finally landed Monday, the result of a sprawling investigation that stretched over 2½ years and led to a complex racketeering case featuring 41 criminal counts against 19 defendants in a massive 98-page indictment," the four Post journalists explain. "Contrast that with a federal indictment filed against Trump on August 1 in Washington that also accuses him of illegally attempting to subvert and overthrow the election."

Gardner, Bailey, Phillips and Jacobs continue, "In that case, Justice Department prosecutors sought charges against Trump alone. They appeared to be aiming for speed and simplicity, producing a 45-page indictment featuring four charges after an investigation of the former president that began well after the Fulton probe. Unlike the Georgia indictment, which alleges multiple instances of making false statements, witness tampering and impersonating a public officer — among dozens of other counts — the federal indictment avoids potentially complicated accusations that some advocates pushed for, such as seditious conspiracy or insurrection."

The reporters note that even some of Trump's detractors have "questioned the apparent breadth of Willis' investigation and the challenge she faces in persuading a jury to criminalize statements about election fraud."

"Willis' ambitious decision to use Georgia's expansive RICO statute — a law historically employed to prosecute mobsters — to charge Trump with leading a vast criminal enterprise to steal the 2020 election could allow her to target many more of those involved in the alleged conspiracy beyond Trump, potentially transforming the way political wrongdoing is punished," according to Gardner, Bailey, Phillips and Jacobs. "Alternatively, her gambit to try all 19 defendants together could be seen by jurors as a massive instance of prosecutorial overreach…. In their breadth, the Georgia charges have the potential to accomplish something that the federal indictment does not: holding people other than Trump accountable for what happened."

But complexity and all, Barbara McQuade, a former federal prosecutor and frequent legal analyst for liberal-leaning MSNBC, believes Willis' emphasis on the defendants' attacks on individuals in Georgia — including Fulton County election worker Ruby Freeman — "might give this case more jury appeal and more public appeal than the federal case."

Caren Morrison, a former federal prosecutor who now teaches law at Georgia State University in Atlanta, told the Post, "Jack Smith's is like the Cliffs Notes version. This is encyclopedic."

The Washington Post's full report is available at this link (subscription required).

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