One year ago today, Fulton County District Attorney Fani Willis announced to the world that a grand jury had handed up criminal charges against former President Donald Trump and 18 others for their alleged participation in a conspiracy to interfere with Georgia’s 2020 election.
Surrounded by her team, in a conservative black suit with an American flag pin affixed to her lapel, Willis appeared unflappable and firmly in control of the historic racketeering case.
Six months later, the steam practically emanated off the DA as she arrived in the courtroom of Superior Court Judge Scott McAfee. Wearing hot pink and catching her breath after dashing up two flights of stairs, Willis — and her deep irritation — were on full display.
By then, the case had spun out of her control. Willis took the stand, pushing back hard against defense attorneys seeking to oust her because of her past romantic relationship with special prosecutor Nathan Wade.
“You’re confused. You think I’m on trial,” Willis told Ashleigh Merchant, the attorney leading the disqualification push. “These (defendants) are on trial for trying to steal an election in 2020. I’m not on trial, no matter how hard you try to put me on trial.”
But like it or not, Willis essentially was on trial. And, in a manner of speaking, she continues to be.
An appeal seeking the DA’s removal has stopped in its tracks what many legal experts considered the strongest case against the former president. Willis had wanted to start the trial against Trump this month. Instead, she must wait until sometime in 2025 for the Georgia Court of Appeals to decide whether she and her office must be disqualified because her relationship with Wade constituted a conflict of interest.
That may come too late for the DA. Republicans in July nominated Trump as their candidate for president. Polls show him running neck-and-neck with Democrat Kamala Harris. By the time the appeals court rules, Trump could be back in the White House.
“It’s not like the case is doomed, it’s just crippled and the prosecution gave the defense all the ammunition they needed to do it,” Atlanta criminal defense attorney Jack Martin said. “As a consequence, justice delayed may be justice denied.”
Credit: TNS
Credit: TNS
From indictment to appeals court
A year ago, Willis and her team came out of the blocks like a bullet.
They secured felony charges not only against Trump but several other bold-faced names from his orbit: former White House Chief of Staff Mark Meadows, onetime New York City Mayor Rudy Giuliani and Sidney Powell, the attorney and conspiracy theorist who promised Trump in the aftermath of the 2020 election that she could expose widespread fraud. (Last October, Powell, who never fulfilled her promise, became one of four defendants to enter guilty pleas in the case.)
Even though Fulton was the fourth jurisdiction to indict Trump on criminal charges, many legal analysts viewed Willis’ case as the one with the most staying power. She had compelling evidence: Trump on tape cajoling multiple Georgia officials, including Secretary of State Brad Raffensperger and the late House Speaker David Ralston, to take unlawful steps to secure his victory.
Willis is a seasoned practitioner of Georgia’s expansive racketeering law, and its leading expert has been advising her. Even more importantly, Trump wouldn’t have the power to dismiss Willis’ case if he was reelected like he could the federal prosecutions, nor could he pardon himself should he be convicted.
But despite clinching a series of early courtroom victories — securing four guilty pleas, including from key legal advisers to Trump, and beating back multiple attempts to move proceedings from state to federal court — Willis’ case in recent months has plunged into uncertain terrain, in no small part due to her own actions.
Her onetime romance with Wade, along with an alternately defensive and defiant speech she delivered at a historic Black church after the relationship became public, is being examined by a second set of judges. Three jurists from the Georgia Court of Appeals have put the lion’s share of the case on hold as they decide whether the speech or the relationship warrants Willis’ disqualification — an outcome that could effectively spell the death of the case.
The appeals court will hold oral arguments in early December and is not expected to rule before early next year. The losing side is almost certain to appeal, which means more delays are possible.
Willis, through a spokesman, declined to be interviewed for this article. But in a recently filed brief, her office told the appeals court that McAfee correctly applied the law by allowing Willis to remain provided that Wade withdraw, which he did.
The defendants “were unable to provide evidence to even demonstrate a coherent theory of conflict,” the brief said. “Their evidence does not demonstrate that the district attorney has a financial ‘stake’ in their convictions such that her public duties are compromised.”
Washington attorney Norm Eisen, who has co-authored Brookings Institution reports on the case and has been largely complimentary of Willis and her work, called this year’s developments in the Fulton case “heartbreaking.” But he noted that Willis and Wade’s “unfortunate” actions have not altered the strength of the underlying case, particularly against Trump.
‘Monday morning quarterback’
The current stasis has some legal experts wondering whether Willis could have been better off pursuing a more streamlined case against Trump that could have moved faster.
“Don’t start with a huge RICO indictment,” said Atlanta criminal defense lawyer Noah Pines. “Don’t bring an indictment where you’ll get 10 to 20 to 30 defense lawyers involved in the case doing everything they can to tie things up. That’s crazy.”
He added, “If you want quick justice and cases to move, you need to make them less complicated.”
Defenders of the DA dismiss such talk.
“It’s easy to Monday morning quarterback, but it’s really hard to take on a former president who has allegedly done some of the worst crimes that we have seen in modern day history, as evidenced by his multiple prosecutions across multiple jurisdictions,” said state Rep. Tanya Miller, a Democrat and former Fulton prosecutor.
Despite the setbacks in the election case — as well as some speed bumps in her other major racketeering prosecution involving the alleged street gang Young Slime Life — Willis is all but guaranteed to be reelected this fall in deep-blue Fulton County. Democrats voted overwhelmingly for Willis in the May primary, in which she received 87 percent of the vote months after her combative turn on the witness stand.
Credit: Ben Hendren for the AJC
Credit: Ben Hendren for the AJC
But the troubled status of her highest profile case is something that could leave a dark mark on her legacy moving forward, especially if she’s ultimately disqualified from the election prosecution.
Even if Willis is able to stay on the case, a Trump victory at the polls this fall could ultimately force her to sideline the prosecution of the Republican until his term ends in 2029, though she could continue to go to trial against the remaining defendants.
And then there is the U.S. Supreme Court, which recently ruled that presidents are largely immune from prosecution for their official acts. That new ruling could sink parts of the Fulton County case, increasing the burden on prosecutors to argue that Trump’s alleged criminal activity in Georgia stems from his private duties as a political candidate, not as president.
Eisen, a former ethics adviser to then-President Barack Obama, said “the vast majority of this case is Trump’s unofficial duties and he’s not immune. So, whenever we get there, that should not pose an obstacle.”
“The conflicts are a tragic distraction because we should now be adjudicating the immunity issues in Georgia,” Eisen added.
GOP sharpens knives
Trump, meanwhile, continues to attack Willis. At a recent campaign rally in Atlanta, the Republican presidential nominee called the DA “an embarrassment to the state of Georgia,” evoked her former relationship with Wade and mocked the way Willis pronounces her first name.
Credit: Hyosub Shin/AJC
Credit: Hyosub Shin/AJC
Trump’s attacks have been echoed by elected Republicans on Capitol Hill and in Georgia, who have long dismissed the case as a politically motivated witch hunt from a Democratic DA with political ambitions.
The GOP leadership of the U.S. House Judiciary Committee has threatened to hold Willis in contempt of Congress if she doesn’t comply with its sweeping requests for information, and a committee in the state Senate is also scrutinizing her decision-making.
Then there is Georgia’s new Prosecuting Attorneys Qualifications Commission, which was created to punish “rogue” prosecutors. The group’s first complaint was against Willis — Senate Republicans argued she “improperly cherry-picked cases” to further her own agenda.
Attention later this month will shift to Washington, where the federal judge overseeing the federal Jan. 6 case against Trump will hold a hearing to discuss how the case should move forward in light of the Supreme Court’s presidential immunity decision.
How U.S. District Court Judge Tanya Chutkan ultimately decides to interpret the high court’s ruling could one day be applied to the Georgia case should McAfee decide to follow her lead.
