Are Fani Willis and Jack Smith Double Teaming To Take Down President Trump?

Indications are emerging that the two prosecutions are moving in sync in what could pose a serious threat to the 45th president.

AP Photo/Alex Brandon
President Trump walks to speak with reporters before departure from Hartsfield-Jackson Atlanta International Airport, August 24, 2023, at Atlanta. AP Photo/Alex Brandon

The appearance of District Attorney Fani Willis’s criminal case in a memorandum submitted by Special Counsel Jack Smith suggests that the two prosecutions are converging. That could be dire news for President Trump. Does it mean, though, that Mr. Smith and Ms. Willis have been working together?

If so, that would be newsworthy, given that, in July, Ms. Willis told an Atlanta radio station, WABE, “I don’t know what Jack Smith is doing and Jack Smith doesn’t know what I’m doing. In all honesty, if Jack Smith was standing next to me, I’m not sure I would know who he was. My guess is he probably can’t pronounce my name correctly.”  

Mr. Smith’s allusion to the Georgia racketeering case is buried in a footnote, but it could soon merit pride of prosecutorial place. It comes in a filing that tries to persuade Judge Tanya Chutkan to force Mr. Trump to declare whether he will mount an advice-of-counsel defense. 

Such a strategy would involve telling a jury that Mr. Trump is not culpable for efforts to overturn the 2020 election because he was merely following the advice of his attorneys, who are meant to be well-versed in the law. Pointing the finger at his attorneys could mitigate the former president’s guilt. 

Mr. Smith, though, looks to Georgia in an effort to preempt that argument before Mr. Trump can make it in a courtroom. Citing an article from the Atlanta Journal-Constitution, the special counsel writes that “three charged co-defendant attorneys” of Mr. Trump’s “pleaded guilty to committing crimes in connection with the 2020 election.”

Those attorneys are Kenenth Chesebro, Sidney Powell, and Jenna Ellis. That trio all recently reached cooperation agreements with Ms. Willis, evading jail time in exchange for promises to aid prosecutors. Ellis and Powell pleaded guilty to one felony, and Mr. Chesebro admitted to six misdemeanors. All of the pleas related to violations of Georgia law in respect of the 2020 election. 

The special counsel tells Judge Chutkan that these “guilty pleas highlight the complications that may arise if the defendant should assert an advice-of-counsel defense.” The District of Columbia Appeals Circuit, which sits above Judge Chutkan, ruled in 2004, “The defense of advice of counsel necessarily fails where counsel acts as an accomplice to the crime.” Ms. Willis appears to have done Mr. Smith a favor there. 

Mr. Trump, though, could argue that he primarily relied not on those three legal minds, but on a fourth, John Eastman. Mr. Eastman is also a defendant in Georgia, and he has not — thus far — pleaded guilty. One of his attorneys, Harvey Silverglate, has steadfastly maintained to the Sun that his client is innocent, and he vows to take the case to trial. 

It appears likely that Mr. Smith’s January 6 trial, set for March, will begin before Mr. Eastman’s in Georgia. So far, no date for it has been set. If that is the case, Mr. Eastman could retain the presumption of innocence long enough for Mr. Trump to, potentially, claim that he relied on the lawyer’s advice. Mr. Eastman was allegedly involved in formulating the plan for alternate electors pledged to Mr. Trump in states won by Mr. Biden.

Messrs. Eastman and Chesebro, and Powell and Ellis, all appear as unindicted co-conspirators in Mr. Smith’s indictment, which was unsealed two weeks before Ms. Willis’s charges hit the docket. It now appears, though, that the Georgian’s desire for a sprawling case was complemented by the special counsel’s yen for a streamlined one. Mr. Smith’s extras are her main characters.

The question of whether Ms. Willis and Mr. Smith are in cahoots is especially pertinent to the legal fate of Mr. Trump’s former chief of staff, Mark Meadows. Mr. Meadows is a defendant in Georgia, but Mr. Smith neither charged him nor listed him as a co-conspirator. That omission could be explained by reports that Mr. Meadows is cooperating with the special counsel in exchange for immunity. 

While Mr. Meadows’s counsel has called reports of a deal “largely inaccurate,” if one were reached — or is even under discussion — the former chief of staff is likely to insist that his testimony at the District of Columbia not be used against him in Georgia. Ms. Willis, on the other hand, is likely to be especially curious as to what Mr. Meadows has to say. Mr. Trump, of course, faces charges in both jurisdictions.       


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