Left: Ex-President and convicted felon Donald Trump speaks at the annual Road to Majority conference in Washington, DC, June 22, 2024. (Photo by Allison Bailey/NurPhoto via AP); Right: Fulton County District Attorney Fani Willis arrives during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta. (AP Photo/Alex Slitz, Pool)
Former president and convicted felon Donald Trump on Monday fired the opening salvo in the appeals court case aimed at dismissing his racketeering (RICO) and election subversion charges in Georgia.
In a 64-page opening brief filed with the Georgia Court of Appeals, the defense says it would settle for Fulton County District Attorney Fani Willis and her office being disqualified from overseeing the case.
“Make no mistake: Willis, by persistently untethering herself from the legal, ethical, and professional constraints of her powerful position, has decimated the integrity of these proceedings,” the filing reads. “Sadly, the circumstances that require her disqualification are entirely self-inflicted wounds that were within her power to avoid. DA Willis disqualified herself.”
“Willis has put her personal, financial, political, and romantic interests before not only her own professional integrity but, more importantly, the due process rights of the accused and the integrity of our judicial system,” the brief goes on. “Willis has taken full advantage of her position to poison the well for the defendants. Willis believes she is immune from disqualification, regardless of how unethical and outrageous her comments are.”
The opening brief runs through the extensive history of the dispute between the elected DA and the nine defendants who have challenged her conduct as worthy of dismissal and disqualification.
The defense has been angling to have Willis and her office removed from the case since January — initially over allegations that her romantic relationship with now-former lead prosecutor Nathan Wade created a conflict of interest due to pecuniary motives.
That first effort was led by co-defendant Michael Roman, a Trump 2020 campaign staffer. Days after the filing, Willis gave a Martin Luther King Jr. Day speech at Big Bethel A.M.E. Church in Atlanta. The DA’s public response to the nepotism allegations included some allegations of her own: that the defendants in the case were highlighting her relationship with Wade because they were racists.
More Law&Crime coverage: Trump savagely blasts Georgia DA’s ‘inflammatory extrajudicial racial comments’ during church speech ‘cloaked in repeated references to God’
Trump later joined the motion to dismiss and disqualify — citing the church speech as the premier reason for why Willis and her team had to go under the legal rubric of “forensic misconduct.” Over the next two months, four hearings and numerous back-and-forth motions were dedicated to issues raised by the defense and the state in response — largely focused on the prosecutors’ disputed romance.
On March 15, Fulton Superior Court Judge Scott McAfee partially granted the defense motion to disqualify but gave the prosecution the choice of which prosecutor had to go. The court’s order was based on a finding that the one-time romance between Willis and Wade resulted in “a significant appearance of impropriety that infects the current structure of the prosecution team.” Wade resigned hours later.
That, the defense says, simply was not enough.
“The trial court was required to unequivocally disqualify Willis and her office,” the brief goes on. “The proposed remedy — a forced election between the withdrawal of Willis and her office or the withdrawal of Wade — did not redress the appearance of impropriety. Nor did it cure or mitigate the misconduct and ‘odor of mendacity’ that it found permeated this case.”
In late March, the defense appealed to the Peach State’s second-highest court. This time, the alleged forensic misconduct of the church speech took prominence in the dismissal and disqualification bid. But, by then, all the allegations were deeply woven together.
Willis lobbied hard against the appellate court’s intervention but failed.
In early May, the court took up the case. In early June, trial court proceedings for Trump, Roman, and seven other co-defendants were stayed — indefinitely delaying the RICO case likely well into 2025.
The procedural posture of Trump’s first formal argument in the appeal is that the trial court erred on three separate occasions.
First the defense argues, McAfee improperly limited precedent on forensic misconduct while acknowledging the church speech was not a good idea. The trial court judge determined the “effect of this speech was to cast racial aspersions at an indicted defendant’s decision to file this pretrial motion” and, in the end, categorized the speech as “legally improper” but said his hands were tied by case law.
Rather, Trump’s attorneys argue, “every available analytical tool” that could have been used to explore forensic misconduct precedent “counseled against the trial court’s ‘restricted’ application.”
“Without a doubt, Willis’ nationally-televised, intentional injection of racism had a substantial likelihood of heightening both the public and the prospective jury pool’s condemnation of the accused,” the brief continues — referencing the ethical rules for Georgia prosecutors.
“Willis’ speech was in no way ‘necessary to inform the public of the nature and extent of the prosecutor’s action,”” the brief continues. “There was no prosecutorial action for comment. Instead, Willis directed her comments at the disqualification motion and concealed from the public (rather than disclosed) her improper relationship with Wade by falsely claiming the allegations stemmed from racism. The State below made no argument that this speech served a legitimate law enforcement purpose. It did not.”
More Law&Crime coverage: ‘Wrongfully inserting racial animus into this case’: Trump motion says DA in RICO case should be disqualified, maybe even disbarred, for ‘racially charged’ speech at Black church
While McAfee was withering in his estimation of the church speech, the defense essentially says his order tried to hide the ball:
Given the trial court’s factual finding on the purpose for Willis’ speech (i.e., casting racial aspersions at the defendants), there is no doubt that this speech was “activity by the prosecutor which tend[ed] to divert the jury from making its determination of guilt or innocence by weighing the legally admitted evidence in the manner prescribed by law.” Describing the speech as “still legally improper,” the trial court’s conclusion was inescapable: “legally improper” meant “forensic misconduct.”
Moreover, the brief argues, Willis’ church speech was also part of a “calculated plan” to “deflect attention away from, and otherwise conceal” her improper and disqualifying relationship with Wade.
Ultimately, McAfee determined the Willis-Wade affair created a “significant appearance of impropriety” that threatened to derail the case due to “specific conduct” by both prosecutors.
Notably, the judge strongly suggested Willis and Wade were not telling the whole truth. The court opined that beyond the impropriety of the relationship and the church speech, there were legitimate questions about the way Willis and Wade exchanged money and gifts, concerns over false filings Wade made in his divorce case that showcased his own tendency to “wrongly conceal” their relationship, and even broader concerns that both Willis and Wade lied under oath.
‘An odor of mendacity remains’: Trump RICO judge strongly suggests Fani Willis and lead prosecutor lied under oath — offering a lifeline for the defense on appeal
But, in the end, only one prosecutor had to go.
That, the defense says, was the second major error.
“Because this ‘specific conduct’ involved Willis and Wade, the trial court found that the ‘District Attorney’s prosecution’ — not only Wade — was ‘encumbered,’” the brief goes on. “Consequently, both were affected prosecutors and due to be disqualified. Georgia courts regularly disqualify private lawyers for an appearance or possibility of a conflict in both criminal and civil cases. This concept makes sense in the context of existing Georgia case law: if private lawyers are disqualified from representing clients based on an appearance of impropriety, so too are prosecutors, who are held to even higher professional standards.”
The defense argues that declining to dismiss the indictment was the trial court’s third major error — this time focusing on Wade’s role.
Wade was hired to take part in the case when it only existed only as a grand jury inquiry. The defense argues Wade was hopelessly conflicted “from the inception” and “Wade was therefore not an authorized grand jury participant, violating due process.”
Again, the filing, at length:
Since being hired, Wade played an integral role before both the special purpose as well as the regular grand jury as lead prosecutor. Wade not only called witnesses and presented testimony, but he was responsible for educating, instructing and assisting the grand jury as it considered the indictment. Throughout his tenure, Wade operated under the conflict of interest that has now disqualified him.
Because the appearance of impropriety found by the trial court existed before the indictment, the grand jury process was not impartial nor free from the potential for improper influence. Indictments obtained by conflicted prosecutors, be they elected, appointed or private, must be dismissed. This is particularly true here because of the staggering misconduct of both Willis and Wade. Reversal is therefore required.
“Absent the removal of Willis and her office, a pall and the ‘odor of mendacity’ will continue to loom,” the filing offers in summary. “To give effect to the Professional Conduct Rules and protect defendants’ due process rights, this Court must conclusively disqualify Willis and her office and dismiss the indictment.”
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