Main image: Republican presidential candidate former President Donald Trump speaks after voting in the Florida primary election in Palm Beach, Fla., 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, March, 1, 2024, in Atlanta. (AP Photo/Alex Slitz, Pool).
Former president Donald Trump and eight co-defendants in the Georgia racketeering (RICO) and election subversion case will be allowed to appeal a judge’s recent decision to keep Fulton County District Attorney Fani Willis in charge of the prosecution.
Fulton Superior Court Judge Scott McAfee on Wednesday granted a certificate of immediate review allowing the defendants to appeal his March 15 order to the Georgia Court of Appeals while the case is still in the pre-trial phase. The appellate court would then make its own decision on whether or not to take up the case before a trial on the merits.
Earlier this week, Trump and seven co-defendants filed a motion arguing that dispensing with their disqualification and dismissal case against Willis and her office prior to a trial was “paramount” and of the “utmost importance.” An eighth co-defendant later filed their own motion making a similar request for immediate appellate review.
The court agreed.
“[T]he requested motion is granted,” McAfee wrote in the terse order.
The judge goes on to declare his own order to be “of such importance to the case that immediate review should be had,” citing to a relevant section of Peach State law on direct appeals.
In that earlier order, McAfee partially granted the defense motion to disqualify. The court’s order was based on a finding that the onetime romantic relationship between Willis and now-former lead prosecutor Nathan Wade created “a significant appearance of impropriety that infects the current structure of the prosecution team.”
The defense still wants the case dismissed in its entirety, according to their Monday filing. Trump and his co-defendants, in the alternative, want Willis and her entire office barred from any further involvement in the complex and high-profile case, the appeal motion explains.
Attorneys for the defendants largely rely on “factual findings” committed to the record by McAfee himself. As Law&Crime previously reported, those findings suggest McAfee had been frequently frustrated with some of the state’s behavior so far — but felt that his hands were tied by precedent, or the lack thereof.
“In its Order, the Court found that District Attorney Willis’ actions had created an appearance of impropriety and an ‘odor of mendacity’ that lingers in this case,” the Monday defense motion notes.
The motion also cites a section of McAfee’s order where the judge opined that “an outsider could reasonably think that District Attorney Willis is not exercising her independent professional judgment totally free of any compromising influences.”
Under Georgia court rules, the defendants will have 10 days from the date the certificate of immediate review was issued to file their application for an interlocutory appeal. Then, the Georgia Court of Appeals will have 45 days from the date the application was filed to issue an order granting or denying consideration of the appeal.
During that potential 55-day-long wait, however, the trial court proceedings will continue apace.
McAfee’s order says the court “intends to continue addressing the many other unrelated pending pretrial motions, regardless of whether the petition is granted within 45 days of filing, and even if any subsequent appeal is expedited by the appellate court.”
In real terms, granting immediate review means the case moves forward – for now. While McAfee appears to foreclose against staying the proceedings on appeal, some case law in Georgia suggests a trial court is deprived of jurisdiction if the appeals court intervenes.
Still, the length of time spent dealing with the disqualification motion has been a substantial boon to the 45th president amid his multiple legal battles and looming election rematch with President Joe Biden. A trial date in Georgia is possible but unlikely before November.
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