When the Georgia Court of Appeals issued a stay earlier this month pausing work on the Fulton County election interference probe, some judges undoubtedly would have looked at the development as a blessed, if temporary, reprieve from a hot potato of a case.
But not Scott McAfee.
The Fulton Superior Court judge, who recently won a full, four-year term on the bench, said he would plow ahead with pretrial motions from the half-dozen defendants not involved in the appeal, which is aimed at disqualifying District Attorney Fani Willis from the case.
In a brief order earlier this month, McAfee wrote that no matter how the appeals court rules on Willis, unless it opts to dismiss the case entirely — an outcome legal analysts believe is highly unlikely — there are still several challenges to the indictment that he needs to resolve before a trial. Many of those motions have already been fully briefed and argued before him, he said.
“At this time,” McAfee wrote, I do “not believe a complete stay is the most efficient course.”
To some close observers of the case, the order signaled a projection of confidence from the 34-year-old jurist in the face of an order from a higher court that on its face seemed clear as mud.
McAfee noted that the appeals court’s stay only listed the names of the nine defendants who sought Willis’ disqualification, not all 15 still in the case. And like the father of young children that he is, he essentially directed defendants unhappy with his decision to take matters up with their mother.
“Any party that disagrees with this finding,” he wrote, “is welcome to seek clarity directly with the Court of Appeals.”
The six defendants who are not involved in the removal push are state Sen. Shawn Still, attorneys John Eastman and Ray Smith, Illinois pastor Stephen Lee, former hip hop publicist Trevian Kutti and Misty Hampton, the previous elections director for Coffee County.
Lawyers for several of those defendants have since asked the appellate court to clarify its order and say whether the stay applies to the nine defendants appealing McAfee’s order or to all 15.
Homework done
McAfee was randomly assigned the case against former President Donald Trump and his allies last August after just six months of experience on the bench. Since then, the former prosecutor and state inspector general has established he’s fully in control of his courtroom, avoiding the negative headlines that have persistently dogged his colleague Ural Glanville, who is overseeing another complex racketeering case spearheaded by the Fulton DA’s office against rapper Young Thug and others.
Credit: Natrice Miller/AJC
Credit: Natrice Miller/AJC
McAfee has largely received praise for his handling of the election case, even in the face of the acrimonious push to remove Willis and her office due to the DA’s onetime romantic relationship with special prosecutor Nathan Wade.
While the disqualification fight overshadowed most other work on the case for the first half of the year, McAfee also continued to hear arguments from attorneys on a litany of other pretrial issues. Among them were challenges to the soundness of the racketeering count in the indictment and the applicability of the Constitution’s Supremacy Clause.
McAfee also asked the parties to brief him on the case law behind three counts in the indictment involving the GOP electors’ certificate and a Trump lawsuit that had been sent to federal court in Atlanta in the aftermath of the 2020 election. Since they involved the federal judiciary there were questions about whether the alleged criminal conduct technically fell under federal, not state, jurisdiction.
Rachel Kaufman, a defense attorney unaffiliated with the case, said she isn’t necessarily surprised that McAfee wants to continue moving ahead with the case.
“He’s the kind of kid that has his homework done,” she said. “His homework’s done, and he’s just waiting to turn it in.”
Emory University law professor Morgan Cloud said he’s been impressed with the way McAfee has comported himself in the wake of a complicated, politically dicey case.
“He is trying to do his job as a judge and get keep a case moving as best he can in the face of these obstacles,” Cloud said.
‘Lots of potential confusion’
But McAfee’s push to trudge ahead is unusual. Trial court action on cases is typically shelved until higher courts finish their consideration of so-called interlocutory appeals.
There is a real question of how far McAfee can advance on the case before running into the appeals court.
Many of the pending pretrial motions involve multiple defendants, some of whom are part of the group appealing Willis’ disqualification. It’s unclear if McAfee will only consider motions filed by the six defendants who remain under his purview — or if he could also consider motions that involve defendants in that group of six but also those seeking to remove the DA.
Some observers speculated that McAfee could issue rulings on issues involving defendants in both groups but only address his orders to the six; he could presumably release a similar order covering the other nine once their appeal is settled. Others disagreed.
“I don’t think McAfee is going to decide any of those motions if any of the appellants are parties to them,” said Clark Cunningham, a Georgia State University law professor.
Defense attorney Andrew Fleischman, who specializes in appeals, previously told the AJC it’s possible that McAfee could issue orders under the caveat they would not take effect until the full case is returned to him.
Emory’s Cloud said that tackling issues that involve defendants in both groups could generate “lots of potential confusion.”
“But it also may be that those proceedings will be easier and quicker to resolve if the court has already had to work through,” he said.
It is possible, some speculated, that Willis could seek to go to trial with the remaining six defendants rather than wait for the other nine to go through the appeals process. That would give Willis a path to litigate at least part of the case before the election, but it could be politically risky if the DA is ultimately removed from the prosecution.
Doing so would also be a departure from preferences previously voiced by the Fulton DA’s office, particularly that all remaining defendants be tried together. Cunningham predicted that McAfee would be unlikely to start a jury trial for any of the defendants while the disqualification appeal is pending.
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