Fulton County District Attorney Fani Willis is asking the Georgia Supreme Court to overturn the lower court opinion that removed her from the 2020 election interference case involving incoming President Donald Trump and more than a dozen others.
In a Wednesday court filing, Willis’ office argued that the Georgia Court of Appeals erred last month when a 2-1 majority concluded that the Democrat’s onetime romantic relationship with former special prosecutor Nathan Wade merited her disqualification from the case.
The decision from the state’s top court will determine whether the Georgia prosecution — the last remaining criminal case against the incoming president — can move forward. Since Trump’s election in November, both federal criminal cases against him have been dropped and his legal team has asked the U.S. Supreme Court to halt his sentencing in New York, where he was convicted of 34 felony counts related to hush money payments to a porn star.
In arguing to keep Willis on the case, Fulton prosecutors said the lower court’s decision to oust her was without legal precedent, nor did it contain “any explanation of its reasoning.” The majority opinion “created a new standard for disqualification unique to prosecutors” while overstepping the court’s authority, they said, adding that the appeals court based its ruling “solely upon appearances,” while rejecting the March decision of trial court judge Scott McAfee “without identifying an abuse of discretion.”
McAfee had concluded that while he didn’t condone Willis’ “tremendous lapse in judgment,” the defense failed to prove the DA had an actual conflict of interest. The Fulton Superior Court judge instead said that Willis could stay on the election case if Wade stepped aside, which the Marietta attorney did hours later.
“The majority opinion ignored precedent, created uncertainty that is likely to recur, implemented a hair-trigger standard disfavored under Georgia law, and replaced the trial court’s discretion with its own,” the prosecutors argued Wednesday. “The State submits that review is necessary to reverse the majority opinion and clarify the standard for disqualification.”
Willis’ appeal amounts to a final effort to hold onto the high-profile racketeering case, which began with an investigation she launched four years ago this month. It grew out of Trump’s leaked phone call to Georgia Secretary of State Brad Raffensperger in January 2021, during which he pressed the fellow Republican to reverse President Joe Biden’s win in the state.
Credit: Ben Gray for the AJC
Credit: Ben Gray for the AJC
It’s an open question how or when the justices on the Georgia Supreme Court will respond to Willis’ request. A majority of justices — five, if all nine judges are participating — must vote to hear the appeal. If there is no majority vote, the Court of Appeals’ decision stands.
If the Supreme Court does grant the appeal, the case will be docketed and must be decided within two terms of court — or within about six months.
Eight of the nine justices on the high court were appointed to the bench by Republican governors.
If Willis is not reinstated, or the state Supreme Court declines to hear the appeal, jurisdiction over the case will fall to a nonpartisan state agency, the Prosecuting Attorneys’ Council of Georgia, which must decide whom to assign it to next.
It is unclear whether there are other prosecutors around the state who would raise their hand to pick it up, given the resources, time and international media attention it would command. Many allies of the DA fear the case would effectively die if Fulton prosecutors cannot maintain control of it.
If Willis is ultimately allowed to keep the case or if another prosecutor is brought in, most legal experts predict Trump will not have to stand trial until after his presidential term ends in 2029, though his 14 remaining co-defendants could be tried beforehand.
The case led to felony racketeering charges against Trump and 18 others in August 2023. Four defendants, including three attorneys who helped advise the Trump campaign, have since struck plea deals with prosecutors.
Staff writer Bill Rankin contributed to this article.
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