Trump Appeals Ruling That Allowed Fani Willis to Stay on Georgia Case

Former President Donald Trump and several codefendants appealed Fulton County Superior Court Judge Scott McAfee’s decision to not disqualify Fulton County District Attorney Fani Willis in the Georgia Court of Appeals on March 29.

Ms. Willis is prosecuting President Trump and 14 others in a high-profile racketeering case that charges them with participating in a criminal conspiracy to challenge the results of the 2020 election.

The appeal was joined by Rudy Giuliani, Mark Meadows, Jeffrey Clark, Robert Cheeley, Michael Roman, David Shafer, Harrison Floyd, and Cathleen Latham, who argued that the trial court judge found “damning evidence” of a “significant appearance of impropriety” yet failed to order a remedy.

“While the trial court factually found DA Willis’s out-of-court statements were improper and Defendants proved an apparent conflict of interest, the trial court erred as a matter of law by not requiring dismissal and DA Willis’ disqualification. This legal error requires the Court’s immediate review,” the application reads.

Defendants argued that the judge had erred in applying the standard for disqualification, and if he erred in his ruling it would require the entire case to be tried again.

The judge had indicated the 15 defendants would be tried in separate groups, and the prosecutors have said each trial will take the same amount of time, three to five months.

“It is neither prudent nor efficient to require the courts, the parties, or taxpayers to run the significant and avoidable risk of having to go through this painful, divisive, and expensive process more than once when an existing structural error can be remedied by this Court now.”

They further argued that disqualification is the “minimum that must be done to remove the stain of her legally improper and plainly unethical conduct from the remainder of the case.”

The defendants also pointed out that Ms. Willis had previously been disqualified from prosecuting a case against a defendant because she had helped fundraise for his political rival. They argued that her behavior has now been “separately denounced by two superior court judges” and her removal from the case is ethically “necessary.”

Judge’s Decision

Earlier this month, Judge McAfee ruled on a motion from Jan. 8 to disqualify Ms. Willis after days of contentious hearings and testimonies, during which accusations were exchanged between the prosecution and defense. He allowed Ms. Willis and her office to stay on the case but ordered that the special counsel she hired, and had been romantically involved with, be taken off the case. Nathan Wade resigned hours after the order.

Judge McAfee found a clear appearance of impropriety, and further criticized Ms. Willis for her public comments, saying some remarks had been “legally improper.” However, he stopped short of disqualifying the district attorney, opining that Mr. Wade’s departure would resolve the appearance issue.

The defendants argued that the judge correctly ruled that Ms. Willis’s hiring of her “paramour” and subsequently “accepting gifts and trips from him that were funded through his compensation as lead prosecutor, created an appearance of impropriety in this case that cast a pall over the entire proceedings.”

But they faulted the judge for stopping short of requiring Ms. Willis’s disqualification, arguing it was “plain legal error requiring reversal.”

“Nothing in the law—anywhere—says that the remedy for an appearance of impropriety is the disqualification of one apparently conflicted lawyer but not another,” the application reads.

The Georgia Court of Appeals has 45 days to decide if it will review the decision at all, but this is not expected to delay or impact case proceedings in the county court.

Accusations of False Testimony

The defendants accused the district attorney of making false claims in court, in the process of litigating the original motion to dismiss.

Mr. Wade and Ms. Willis had testified that their “personal” relationship did not begin until 2022, including in an affidavit Mr. Wade submitted to the court on Feb. 2, almost two weeks before his testimony.

Defendants argued this was a false claim because evidence at the hearing demonstrated otherwise, pointing to a former friend of Ms. Willis’s whose testimony Judge McAfee found lacking in both “context and detail.”

The defendants also argued the prosecutors had provided “wholly unsupported explanation of cash repayments” as an argument that there were no gifts exchanged. Ms. Willis said she gave Mr. Wade large cash reimbursements but neither had any such documentation of that.

She also acknowledged on the witness stand that she had never declared any of Mr. Wade’s dinner or trip purchases, even though local law requires her to report any gifts over $100 from contractors like Mr. Wade.

Defendants noted that Judge McAfee had, in his decision, criticized Ms. Willis’s “tremendous lapse in judgment,” noting that an “odor of mendacity” lingered over the prosecution, and even described the transactions as a “’financial cloud of impropriety.” He even described testimony regarding the timeline of the relationship as “potential untruthfulness.”

Yet the judge stopped “just short of calling their testimony … outright fabrication,” the defendants argued, describing the judge’s order as “half-hearted.”

The defendants were more direct, accusing the district attorney of “lying” and providing “falsehoods” in her testimony. They argued this was clear “forensic misconduct.”

‘Improper’ Speech

In addition to criticizing her detractors for playing “the race card,” Ms. Willis had made statements suggesting she prejudged the defendants as guilty and that they would be convicted. The defendants noted she had been “boasting about her ’superstar‘ team with a ’conviction rate of 95 percent‘ who ’win, win, win.’”

Defendants argued that allowing the district attorney to continue to prosecute this case when she had already been found to be acting in a “legally improper” way would violate their due process rights.

“The Supreme Court has determined that due process is violated when negative pretrial publicity is widespread through the media, and its prejudicial effects on defendants are inherent and presumed,” the application reads.

Judge McAfee’s own ruling identified that he was unclear on what standard to apply to disqualification, the defendants argued. The judge wrote that he was left “unmoored from precedent” and thus bound to limited case law that touched on standards of forensic misconduct and disqualification.

The one case the judge referred to resulted in disqualification based on a prosecutor’s public statements about his belief the defendant was guilty. Defendants here argued that a prosecutor need not utter the word “guilty” for this standard to be applied; that case had found that courts should see if such statements were part of “a design to prejudice the defendants in the minds of the jurors.”

“A prosecutor appearing on national television to malign and disparage defendants is not rendered consistent with due process and her ethical obligations merely because she refrains from explicitly saying that they are guilty of the crime charged,” the application reads.

‘The Train Is Coming’

While granting the request to seek review, Judge McAfee noted that he would continue to work through the lingering motions in the meantime, scheduling a hearing on March 28 for two other motions to dismiss certain charges. The hearing dealt largely with procedural issues, and the judge will have to decide whether it is appropriate to rule on the motions in this pre-trial stage.

The district attorney has said the case will not slow down either. Ms. Willis recently gave an interview to CNN during an Easter event, saying her office has continued to work on the case throughout the disqualification hearings.

“While that was going on, we were writing responsive briefs, we were still doing the case in a way that it needed to be done. I don’t feel like we’ve been slowed down at all. I do think there are efforts to slow down this train, but the train is coming,” she said on March 23.

The comments came after the judge warned prosecutors against speaking publicly about the case in his order. Days after the motion to disqualify was filed in January, Ms. Willis gave a live-streamed MLK day speech at a church in Atlanta where she insinuated her critics were playing “the race card.”

In court, the state argued Ms. Willis was not talking specifically about the defense, but the judge found that she had cast “racial aspersions” on the defense, and therein lies the danger of prosecutors talking about the case publicly.

CNN reported that Ms. Willis did not see a need to “rehabilitate” her image.

“I’m not embarrassed by anything I’ve done. I guess my greatest crime is I had a relationship with a man, but that’s not something I find embarrassing in any way. And I know that I have not done anything that’s illegal,” she said at the event.

She also explained that she would be taking the lead on plea deal agreements going forward, as Mr. Wade had previously handled the plea bargains.