Donald Trump was indicted twice over the 2020 election. How the legal battles are similar − and different
WASHINGTON — It all comes back to the 2020 election − even in 2024.
Earlier this week, a grand jury in Georgia indicted former President Donald Trump and 18 of his allies for allegedly conspiring to overturn the state's 2020 election results.
But some of the details in Trump’s latest indictment may ring a bell. Trump was also indicted over an alleged conspiracy to steal the 2020 election earlier this month in accusations from Justice Department special counsel Jack Smith.
Those charges feature a nationwide focus on Trump’s alleged plot, but zero in on some of the same actions that the former president took in key battleground states, including Georgia. The similarities in the cases, however, are overshadowed by Fulton County District Attorney Fani Willis and Smith taking different approaches to the indictments.
"Each of them is arguably staying true to their respective roles," David Super, a constitutional law expert at Georgetown University, told USA TODAY.
Here's how the two indictments Trump faces over the 2020 presidential election are similar − and different.
What's similar between the cases? Trump, his allies allegedly pressured officials in key battleground states
Both of the indictments allege that Trump and his allies pressured legislators in key battleground states Biden won to change electoral votes in favor of Trump.
One of the most dramatic moments described in the indictments is the now-infamous phone call between Trump and Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021, just days before the Jan. 6 Capitol attack, in which the former president allegedly pressured Raffensperger to find “11,780 votes” and unlawfully alter the election's outcome in the Peach State.
In another incident on Dec. 10, 2020, the Georgia indictment accuses former Trump lawyer Rudy Giuliani of falsely claiming in a hearing that two election workers, Ruby Freeman and Shaye Moss, committed voter fraud. Freeman and Moss were cleared of wrongdoing by Georgia authorities earlier this year.
The federal 2020 election indictment describes the same moment, but it doesn’t name the two election workers or Giuliani, instead referencing an unnamed “co-conspirator one.”
Likewise, Trump and his allies allegedly targeted legislators in Arizona, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin, pushing false information about election fraud or even urging them to effectively flip their states to the then-president.
False claims of election fraud to advance a criminal conspiracy
Both of the indictments allege that Trump and his allies made false election fraud claims, even as they were corrected numerous times by Department of Justice officials, Trump's campaign staffers and others.
The false allegations that Trump and his allies spread ranged from dead voters casting ballots to voting machines manipulating votes and paper ballots being destroyed. There was no evidence to prove the claims, and they were dismissed in courts across the country.
The federal 2020 election indictment in particular notes that Trump, like other Americans, had the right to make these false claims. But it alleges, like the Georgia indictment, that Trump knowingly spread them in an effort to overturn the 2020 election.
For instance, Trump's first 2020 election indictment alleges that he falsely claimed that there had been a suspicious vote dump in Detroit, Michigan − an allegation that Trump's attorney general, former Michigan Senate Majority Leader Mike Shirkey and former Michigan House of Representatives Speaker Lee Chatfield debunked.
Trump and his allies allegedly recruited slate of fake electors
Trump and his allies allegedly devised a plan to recruit fake electors in an effort to replace legitimate presidential electors in key battleground states and undermine Biden’s win, according to both indictments.
Presidential elections are typically determined by votes cast by electors, a group of people chosen by each state to represent voters. On a certain date, all electors meet to collect the results of the presidential election and to send their votes to Congress for certification.
The first 2020 election indictment alleges that Trump's electors met on that specified date to cast fraudulent votes for Trump and sign certificates falsely claiming they were legitimate electors.
The Georgia indictment takes a closer look at one of these bids conducted by Georgia Republican Party chairman David Shafer, Georgia State Senator Shawn Still and former GOP chair for Coffee County Cathleen Latham, as well as other unnamed co-conspirators who falsely posed as legitimate electors from Georgia.
The indictments also claim Trump and his allies pressured former Vice President Mike Pence to reject electoral votes cast by actual electors from several states, which Pence refused to do.
What's different between the two cases? A look at who's being charged.
The 2020 election indictment is charging Trump alone, but it includes six unnamed co-conspirators who allegedly worked with the former president to try to overturn the 2020 election results.
The Georgia indictment, on the other hand, names Trump and 18 of his allies accused of a conspiracy in the state. These also include Giuliani and Eastman, as well as Trump administration officials and campaign staffers like Mark Meadows, among others.
What charges are Trump and his allies facing?
The federal 2020 election indictment charges Trump with four felony counts: conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding on Jan. 6, 2021, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights.
In contrast, the Georgia indictment charges Trump and 18 of his allies with violating Georgia's Racketeer Influenced and Corrupt Organizations, or RICO, Act. That criminalizes racketeering activity, according to Marc Scholl, a former prosecutor in New York now counsel to the firm Lewis Baach Kaufmann & Middlemiss.
"A RICO prosecution often involves corrupting an organization by a pattern of acts that are themselves often crimes...being guilty of a RICO crime is more serious in terms of punishment often than the individual crimes that might form part of the racketeering activity," Scholl said.
Joan Meyer, a partner at the law firm Thompson Hine, told USA TODAY that the RICO Act "is a very complex charge and will necessitate a lengthy trial if most defendants don’t plead guilty."
"This type of charge is typically used for established criminal organizations like mobs or gangs but Willis has used it in the past in non-traditional ways," Meyer said.
Trump and his allies also face other charges in the Georgia indictment, including conspiracy to commit forgery in the first degree, solicitation of violation of oath by public officer, and more.
Prosecuting Trump: How is Willis' strategy different than Smith's?
The strategies Willis and Smith are relying on in their cases are vastly different. That's why the indictments are framed under different circumstances, legal experts told USA TODAY.
In the Georgia case, Willis is pursuing a more traditional goal of maximizing her chances of success by punishing as many as possible of those potentially guilty of wrongdoing, Super said.
"This maximizes the prosecutor's leverage to trade leniency for testimony with some of the junior members of the conspiracy," Super said.
The RICO Act increases the leverage that prosecutors have to try to get people to cooperate, plead guilty, take immunity and then provide evidence against others, including the former president, Clark Cunningham, a law professor at Georgia State University, told USA TODAY.
Smith's case, on the other hand, is focused on national consequences of Trump's alleged efforts, including the storming of the Capitol building on Jan. 6, 2021 while Congress was certifying the 2020 election results.
He's using a surgical strategy in bringing specific charges that are more manageable with a much smaller group of defendants, Meyer said.
“More defendants means greater delays. Smith wanted to make his case clean and simple so he could get it to trial before the 2024 election,” Meyer said.
This article originally appeared on USA TODAY: Donald Trump was indicted twice over the 2020 election. Here's why.
