The election interference case against President-elect Donald Trump should move forward and his request to have the criminal charges against him dismissed should be denied, the Fulton County District Attorney’s Office said in a court filing on Wednesday.
The strongly worded motion was a response to a filing earlier this month by Trump’s Atlanta lawyers which argued it is unconstitutional to prosecute someone about to become the next U.S. president. It asked the Georgia Court of Appeals to decide that it no longer had jurisdiction over the case. That also holds true for Scott McAfee, the Superior Court judge who has been presiding over the case, the filing contended.
In the response on Wednesday, Fulton prosecutor McDonald Wakeford said the appeals court should ignore Trump’s request. He said the president-elect’s filing is “procedurally and legally inadequate” and contains “sweeping legal generalizations which are either misleading or oversimplified.”
Trump’s filing also was not a motion, Wakeford said. Instead, it was merely a “notice” that offered “conclusory statements rather than reasoned argument.”
And while the courts’ understanding of presidential immunity continues to evolve, “’president-elect immunity’ obviously does not exist,” Wakeford wrote. And while a sitting president is given the authority of the chief executive under the U.S. Constitution, “a president-elect holds none.”
Trump’s lawyers had cited a memo prepared by the U.S. Justice Department’s Office of Legal Counsel which said the Constitution forbids prosecutors from interfering with the ability of an elected president to carry out his executive duties.
But the Office of Legal Counsel’s views are not binding and they only apply to federal, not state, prosecutions, Wakeford wrote. He added that the legal reasoning in Trump’s filing was “underbaked.”
In their filing, Trump’s lawyers did “not specify or articulate how the appeal — or indeed, any other aspect of this case — will constitutionally impede or interfere with his duties once he assumes office,” Wakeford wrote. “The notice makes mention of these concepts without actually examining them or applying them to the present circumstances.”
Trump’s lawyers are “suggesting yet again (as he has in every case brought against him in every jurisdiction) that this prosecution is politically motivated,” Wakeford wrote. “(Trump’s) prosecution in fact arose from his own actions.”
Trump’s Atlanta attorneys, in a subsequent court filing on Wednesday, said they had only intended “to alert this court to a jurisdictional issue and (Trump’s) legal position on how and when the issue should be addressed.”
But the DA’s office “chose in its response to attack the notice itself and not the merits of President Trump’s position,” the lawyers said.
The election interference case has been on hold while the Georgia Court of Appeals is considering whether Willis and her office should be removed from the 2020 election case.
Several defendants, including Trump, are arguing that the DA’s former romantic relationship with Nathan Wade, the outside attorney she once hired to lead the case, represents a conflict of interest. They have also pointed to several statements she made to the media and in a fiery church speech early last year.
The three-judge panel hearing the case recently canceled oral arguments that had been set for early December with no explanation. The court must issue its ruling by mid-March.
Whichever side loses is expected to appeal to the state Supreme Court, which means the question likely won’t be resolved until later in 2025.
Willis, who was recently elected to a second four-year term, has suggested she’ll continue prosecuting Trump if she’s allowed to continue on the case. However, many constitutional law professors have argued the courts will force Willis to delay her case against Trump while he’s in office, though there is no precedent for state prosecutions of presidents, either incoming or sitting.
Even if the DA is blocked from pursuing Trump until 2029 she could still continue moving to try his 14 co-defendants, including former White House Chief of Staff Mark Meadows and onetime personal attorney Rudy Giuliani.
