Main image: Republican presidential candidate former President Donald Trump speaks after voting in the Florida primary election in Palm Beach, Fla., Tuesday, March 19, 2024. (AP Photo/Wilfredo Lee). Inset right: Fulton County District Attorney Fani Willis looks on during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta. (AP Photo/Alex Slitz, Pool).
The Georgia Court of Appeals on Wednesday granted an interlocutory review of the lower court decision that allowed Fulton County District Attorney Fani Willis to remain in charge of the racketeering (RICO) and election subversion case against former President Donald Trump.
The decision is a decided loss for Willis, who lobbied against the appellate court’s intervention. The move likely signals additional delays in the long-delayed trial process and could even portend the removal of the district attorney and her office from the case itself.
In the terse, one-page order, the Peach State’s second-highest court granted the application for interlocutory appeal filed on March 29. The appeals court had 45 days, until May 13, to issue an order granting or denying consideration of the defense appeal from the trial court order that halfheartedly and narrowly allowed Willis to remain on the case.
The defense has been angling to have Willis and her office removed from the case since early January — initially over allegations that her romantic relationship with now-former lead prosecutor Nathan Wade created a conflict of interest due to pecuniary motives.
The motion that brought the once-secretive, then-admitted, affair into the light of day was filed by attorney Ashleigh Merchant on behalf of Michael Roman, a senior staff member for Trump’s 2020 reelection campaign. Prosecutors in the Peach State claim he played a relevant, criminal, role in the fake or “contingent” electors scheme. Once those allegations were lodged in court, they slowly but surely blew up the timeline Willis and her lieutenants had for quick justice.
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.
The original crux of the defense’s basic argument for removing Willis was that the district attorney hired her then-boyfriend for the job, overpaid him, and then reaped something akin to a financial windfall in the form of vacations, travel, lodging, and other such gifts. Those alleged gifts, the defense argued, were paid for with public funds.
In the end, McAfee said the defense had not met its burden to show Willis obtained “a material financial benefit as a result of her decision to hire” Wade — or that the “financial gain flowing from her relationship” motivated Willis to prosecute and prolong the case.
On March 20, McAfee granted a certificate of immediate review allowing the defendants to appeal his decision allowing Willis to stay while the case is still in the pretrial phase — but cautioning the defense that the pretrial process would still play out in the meantime.
Now that the appeals court has decided to take up the case against Willis, the defendants will be allowed to — and almost certainly will — file for a stay pending the results of the overall appeal.
The defense has 10 days from May 8 to file a formal notice of appeal.
The earlier appeal application was premised on “forensic misconduct” allegations against Willis over her Martin Luther King Jr. Day speech at Big Bethel A.M.E. Church in Atlanta — a speech that, the defense argued, was a direct public response to the nepotism allegations.
“While the trial court factually found DA Willis’ 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,” the appeal reads. “This legal error requires the Court’s immediate review.”
The defense has accused the district attorney of using the nationally-televised speech to make “inflammatory extrajudicial racial comments” about the defendants and of improperly stoking “racial animus” to influence would-be jurors in retaliation for, and in order to deflect from, the allegations raised in the motion to disqualify.
McAfee was withering in his prior estimation of this speech.
“The effect of this speech was to cast racial aspersions at an indicted defendant’s decision to file this pretrial motion,” the judge wrote.
The defense argued the trial court’s decision not to toss Willis and her office from the case was “legal error” that needs immediate review.
The appeals court agreed that the matter necessitated review.
Notably, however, the appellate court will not be cabined by the primary forensic focus of the defense’s appeal. Rather, the judges chosen to consider the allegations against Willis will have extremely broad latitude to review “all judgments, rulings, or orders rendered in the case” under long-standing statutory authority in Georgia. In other words, the parties will more or less be able to raise all of the prior issues in the case — even an issue previously considered moot.
The decision to take up the allegations against Willis lodged by Trump and his co-defendants in the sprawling case surprised many legal experts and practitioners in Georgia who prognosticated the chances of such an intervention ranged from thin to slightly not thin.
Georgia State University College of Law Professor Anthony Michael Kreis wagered the odds were 4-1 against appellate intervention. In a series of tweets on X (formerly Twitter), he provided the upshot of the current hindsight consensus among Peach State lawyers.
“Fani Willis messed up badly,” Kreis said. “There will be no Georgia trial before 2025. Period. Full stop.”
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