Future of Fulton case against Trump muddled as appeals court considers attempt to disqualify Willis

The Georgia Court of Appeals is expected to take several months to rule on a request from former President Donald Trump and several co-defendants to remove the Fulton County district attorney from the 2020 presidential election interference case.

The appeals court ruling means that District Attorney Fani Willis will renew a court battle with defense attorneys over whether Superior Court Judge Scott McAfee erred by rejecting a motion to disqualify Willis from the case after she admitted to a romantic relationship with a special prosecutor she hired in November 2021 to lead the probe into attempts by Trump and his allies to overturn the 2020 election in Georgia and several other states.

The appellate court ruled on the defenses’ motion within the 45-day window the law allows since the appeal was filed on March 29. The court order further diminishes the chance of the Fulton County District Attorney’s office convening a trial this year for racketeering and conspiracy charges against the presumptive Republican presidential nominee and Trump’s 14 remaining co-defendants.

Trump’s attorney Steve Sadow and other defense lawyers have argued that McAfee should not have allowed special prosecutor Nathan Wade to resign on March 15 while allowing Willis to remain on the case, alleging her hiring of Wade and then taking vacations to Aruba and other places with him amounted to prosecutorial misconduct.

McAfee wrote in his March 15 court order that there is a need to address a “significant appearance of impropriety that infects the current structure of the prosecution team,” referring to Willis and Wade. The two admitted to having become romantically involved several months after Willis hired Wade as special prosecutor in November 2021.

The GA Court of Appeals has GRANTED President Trump's Application for Interlocutory Appeal from the trial court's order refusing to disqualify Fulton County DA Fani Willis!!!

— Steve Sadow (@stevesadow) May 8, 2024

McAfee ruled that the Trump co-defendants failed to sufficiently prove there was conflict of interest related to a relationship that saw Wade get paid more than $700,000 by Fulton County before stepping down in March.

Four co-defendants have received plea agreements on misdemeanor charges that allow them to serve probation if they testify for the state.

Ex-Gwinnett County District Attorney Danny Porter said it is uncommon for a case to be granted an “interlocutory appeal” which allows an appellate court to review a lower court’s ruling before the trial begins.

Additionally, it is intriguing that the defendants are appealing a decision made by a judge exercising discretionary judgment rather than an appeal solely based on the law, Porter said.

The next step in the legal process is for the attorneys representing Trump and his co-defendants to file a notice of appeal in order to transfer the case from the Fulton County Superior Court to the Court of Appeals. The defense will have 20 days after filing the notice to file briefs with the court, and the state will have another 20 days to respond.

Although the Georgia appellate court discourages oral arguments, Porter said he expects the court to approve a request from the defense or state for an in-person hearing.

In the end, a panel of judges will either affirm McAfee’s decision to keep Willis on the case, schedule an additional hearing to evaluate more evidence, or disqualify Willis, thereby preventing anyone else from taking over the case from the Fulton DA’s office.

Porter estimated that the appellate process would take at least five months to complete. The state or defense could also petition the Georgia Supreme Court to review the decision of the appellate court.

Porter said it’s possible that one of the factors in the appellate court granting the pre-trial review is due the historic legal significance of a potential racketeering trial that has a former president as the lead defendant.

The court granted the defendant’s “interlocutory appeal” in a one-page document without explaining its reasoning.

“The Court of Appeals could be trying to more or less clear the decks to get the issue resolved so it doesn’t hang over the trial one way or the other. That may be the most charitable explanation. It’s hard to say why they do what they do, but it’s unusual to grant an interlocutory appeal.”

The appeal came from Trump and co-defendants including former Trump campaign officer Michael Roman, former Trump attorney Rudy Giuliani and ex-White House Chief of Staff Mark Meadows.

Willis uses criticism to rally Black support 

Although Willis has come under greater scrutiny since the public learned about her prior romantic relationship with Wade, she is using the criticism against her as a rallying cry for her re-election campaign.

A press conference was held at Atlanta’s Big Bethel African Methodist Episcopal Church on Monday, as a group of influential Black religious leaders announced their endorsement of Willis in the May 21 Democratic primary when she faces Christian Wise Smith, who has served as Atlanta city solicitor and as a Fulton County prosecutor.

During her Monday public appearance, Willis referred to a witch hunt against her since she is a Black woman who is willing to stand up to Trump and the GOP machine supporting Trump’s nomination.

“Fani Willis has proven herself to be an effective, fearless, and courageous district attorney determined to defend and prioritize the pursuit of justice throughout Fulton County,” said Bishop Reginald T. Jackson,  who represents 500 Georgia churches within the African Methodist Episcopal Church’s Sixth Episcopal District. “I am proud to call her my friend and look forward to bringing the multi-denominations of Georgia’s African-American Faith community together to showcase her leadership, passion, and results for Fulton County.”

Emory University political science professor Andra Gillespie said the dynamics of race have also been used by Trump, who has labeled Black prosecutors like Willis as “reverse racists” for daring to prosecute him.

“(Willis) has certainly invoked that type of language and imagery,” Gillespie said. “(Trump) also has tried to besmirch Fani Willis’s character by making other allegations that seem to be very latent with stereotypes.”

The first several months of 2024 have also reaped rewards for Willis’ campaign war chest, bringing in $229,333 in campaign donations between January and April, double the amount raised in the last six months of 2023, according to Georgia campaign finance reports.

The winner of the upcoming Fulton DA Democratic primary will have a significant advantage in the Nov. 5 general election in a matchup against Courtney Kramer, a self-described MAGA attorney who has worked in the Trump White House. Kramer faces an uphill battle in heavily Democratic Fulton.

“It will be interesting to look at where her vote support comes from, not just in this primary election that’s going to happen in two weeks, but also ultimately in November for the general election for DA,” Gillespie said. “We forget, because this is a very different context, but that when Willis ran in 2020 for this DA slot, when she was running against Paul Howard, she was the one who garnered a lot of support outside of the African-American community.”

Trump’s legal issues extend beyond Georgia

When a grand jury in Fulton County indicted Trump and 18 others on racketeering and conspiracy charges in August, it was the fourth case that Trump faced criminal charges in 2023.

In March 2023, Trump became the first former US president to face criminal charges when he was indicted by a New York grand jury on 34 counts of falsifying business records. Trump is currently on trial in New York for allegedly trying to hide hush money paid to keep adult film star Stormy Daniels from disclosing details about an alleged extramarital affair with Trump in 2006.

On Tuesday, a U.S. district court judge indefinitely delayed a federal classified documents trial that had been scheduled to start on May 20. The next pretrial hearing in Florida court is now scheduled for July 22 as Trump stands trial for allegedly illegally retaining classified documents and trying to hide them from federal authorities.

Trump’s federal election interference case is on hold until after the U.S. Supreme Court rules on whether presidential immunity protects Trump from those criminal charges connected to his attempt to overturn the 2020 election. The Supreme Court’s decision would set a legal precedent on the extent that presidents could be prosecuted for actions taken while they are in office.

Reporter Ross Williams contributed to this report.