Opinion | Keep Your Eyes on Jack Smith
Prosecutor Fani Willis filed a sprawling new indictment against Donald Trump, but the Justice Department’s prosecution is likely to take priority.
Fulton County District Attorney Fani Willis may not have been the first person to get an indictment of Donald Trump, but she may have produced the biggest one — at least by some metrics.
The indictment, which alleges that Trump participated in a criminal scheme to change the outcome of the election in Georgia in 2020, is nearly 100 pages long — more than twice as long as Justice Department special counsel Jack Smith’s latest indictment. Willis’ case also includes far more co-defendants — 18 — than any of the other cases, including big names like Mark Meadows and Rudy Giuliani. And the prosecution seems to deploy a more aggressive legal theory by using as its linchpin the state’s Racketeer Influenced and Corrupt Organizations Act — a name that tends to conjure up images in the public mind of high-profile mob takedowns and the like.
All of this might lead you to believe that this case will now become the center of prosecutorial gravity in the Trump legal universe headed into the 2024 election, but that would probably be a mistake. That distinction is likely to continue to belong to Smith’s prosecution in Washington, D.C., which also alleges that Trump attempted to overturn the 2020 election. There are real structural and legal differences between the cases, of course, but if you are particularly interested in how Trump’s legal issues might intersect with and influence the 2024 campaign, you should continue to focus your attention on the federal case.
For starters, although Willis’ case is going to occupy a lot of attention in political media in the coming days, it is likely to take a backseat to the federal case as a practical matter. Smith’s case was filed earlier, and federal proceedings tend to take priority in the legal system.
In fact, the coexistence of these parallel federal and state criminal cases is unusual in itself. It seems to have been the result of the Justice Department’s initial reticence to pursue Trump’s criminal exposure after he left office. That is now (mercifully) behind us.
Willis has said that she would like to bring her case to trial in the next six months, but it is hard to believe that will happen. The fact that there are many more defendants also means that there will be more lawyers; more legal, procedural and logistical, challenges; and more complex pretrial disputes for the judge to resolve. Not surprisingly, comparable cases in Fulton County, to the extent they exist, have taken much longer than Willis’ proposed timeline.
Willis’ case will also have to contend with the three other criminal cases already occupying real estate on the Trump 2024 calendar — the prosecution in Manhattan, which is already scheduled to go to trial in March, the Justice Department’s prosecution in Florida (concerning Trump’s retention of classified documents), which is scheduled to go to trial in May, and the department’s prosecution in Washington, D.C., which does not yet have a trial date. The Justice Department recently proposed that the D.C. case go to trial in January, which itself is incredibly ambitious, and it remains to be seen what the judge will do.
I would not be surprised to see these cases move around on the calendar in significant ways in the months ahead. In fact, Manhattan District Attorney Alvin Bragg has already indicated that he would be willing to adjourn his case in deference to federal prosecutors.
But there is also little question in my mind that if one case should go to trial next year, it should be the Justice Department’s 2020 election case. The judges ought to agree as well.
We can debate (and have debated) the relative significance of all of these cases, but there is something singularly important about having a resolution to the federal case. The Justice Department is our one and only nationally representative prosecutorial body. Trump is a former president who has been charged with trying to steal the last election and attempting to defraud the American people, and to top it all off, he remains on track to be the GOP’s presidential nominee next year — which means that he has a plausible path back to the White House next November. The fact pattern cries out for a timely resolution at the federal level, at least as to Trump.
Voters also deserve to know the outcome of the Justice Department’s election case before they head to the polls next year — at least in the general election, assuming Trump gets his party’s nomination — and consider whether to voluntarily send Trump back to Washington. I have no idea whether voters will make that choice, and there is good reason to worry that they might. But the American public’s interest in the outcome of the federal case against Trump could not be higher.
In other words, keep your eyes on Jack Smith.