Trump, Seeking To Hold Jack Smith at Bay, Turns to Fani Willis for Help

The former president, in an unusual request, asks the district attorney to reach out to the special counsel.

AP/Jose Luis Magana
Special Counsel Jack Smith speaks to reporters on June 9, 2023, at the District of Columbia. AP/Jose Luis Magana

The request by President Trump that the district attorney of Fulton County, Fani Willis, contact Special Counsel Jack Smith, throws into sharp relief the strange bedfellows generated by the former president’s byzantine legal predicaments.

Both Ms. Willis, a state prosecutor, and Mr. Smith, a federal one, are prosecuting Mr. Trump for efforts to overturn the 2020 presidential election. The special counsel’s case is against Mr. Trump alone, while Ms. Willis, in a sprawling racketeering indictment, is levying charges against 18 others alongside the former president.  

Now, in a motion filed to Judge Scott McAfee at Atlanta, Mr. Trump asks Ms. Willis to contact Mr. Smith with the goal of obtaining evidentiary materials that could then be shared, via discovery, with the legal team defending Mr. Trump in Georgia. It appears that the former president believes that the material gathered at the District of Columbia could help him at Fulton County. 

In a statement to the Atlanta Journal-Constitution, an attorney for Mr. Trump, Steven Sadow, explains that his client is “seeking fair and reasonable means to protect his right to due process of law under the U.S. and Georgia Constitutions.” He adds that securing access to “relevant discovery contained in the files of the Special Counsel’s Office in D.C. will further support President Trump’s defense and make clear his innocence in the Fulton County case.”

Mr. Sadow explains to Judge McAfee that he attempted to reach out to Mr. Trump’s District of Columbia-based counsel, but was told that they could not share discovery material with him because of a protective order imposed by Judge Chutkan. That decree, which Mr. Trump opposed, comes at the request of Mr. Smith, who worries that the former president will broadcast the sensitive materials. 

If Mr. Smith forwarded the materials — Mr. Sadow notes that he does not yet want the records themselves, but just a list of what has been compiled thus far  — to Ms. Willis, though, they would escape Judge Chutkan’s jurisdiction. The district attorney, or so the strategy goes, would then be obligated to produce them to Mr. Trump.

That requirement is constitutional, derived from the 14th Amendment’s promise of due process as interpreted by a Supreme Court case, Brady v. Maryland. It rests solely with the government, which is mandated to turn over all material evidence that could be exculpatory for the defendant. It is no excuse to say that the defendant did not request it first. 

The Department of Justice, which employs Mr. Smith, in an “FBI Law Enforcement Bulletin,” explains that the requirement “imposes a substantial burden on police and prosecutors to be alert to the existence of such evidence and to be sensitive to their duty to disclose.” A violation of this duty results in charges being dropped. 

Judge Chutkan’s protective order means that Mr. Trump’s attorneys in Mr. Smith’s case cannot share those materials with the former president’s attorneys in his other legal matters. Mr. Sadow’s request for materials “relating to witnesses the DA’s office may call at trial or bearing on factual issues raised by the charges in the indictment likely to be in dispute at trial” testifies to the overlap between the cases. 

Mr. Sadow suggests that the request that Mr. Smith and Ms. Willis open an evidentiary channel be discussed at a hearing scheduled for December 1. The district attorney has proposed an August 5 trial date for Mr. Trump and his co-defendants, a timeline to which Mr. Sadow has objected to as unduly hasty. Mr. Smith’s trial before Judge Chutkan is set for March 4.    

Ms. Willis and Mr. Smith do not appear to have an extensive history. In July, Ms. Willis told an Atlanta radio station, WABE, that “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.”

The New York Sun

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