Left: Harrison Floyd (Fulton County Jail mug shot); Right: Fulton County District Attorney Fani Willis speaks on Aug. 14, 2023, in Atlanta (AP Photo/John Bazemore).
A co-defendant in the Georgia racketeering (RICO) and election subversion case against former President Donald Trump will be allowed to immediately appeal several trial court decisions against him to the Georgia Court of Appeals.
Fulton Superior Court Judge Scott McAfee on Monday granted a certificate of immediate review allowing Harrison Floyd, the former leader of Black Voices for Trump, to request a hearing from the higher court about his procedural motion to dismiss the case.
McAfee has, on several prior occasions, denied arguments made by Floyd that Fulton County District Attorney Fani Willis was operating beyond her jurisdiction when her office began an “election-related” investigation and, subsequently, when the charges were filed.
Floyd has been pressing the issue since October 2023, arguing Willis’ office “did not have authority to investigation or presentment authority to bring election-related charges against the Defendant absent a referral from the State Election Board.”
The state replied to those arguments last November and Floyd’s attorneys replied to the state last December, court documents show.
The court first ruled against Floyd’s arguments regarding the remit of Willis’ power on Jan. 9, finding that Willis did, in fact, have “concurrent jurisdiction” with Peach State election officials — and that she did not need a referral from the board to pursue election subversion charges.
In turn, Floyd’s attorneys made their first request for permission to appeal to the higher court on Jan. 12, with an alternative request for the judge to simply reconsider his ruling in the district attorney’s favor.
Earlier in March, the trial court dispensed with the defense motion to reconsider, tersely ruling against Floyd without discussion in a one-page order and reaffirming the early January order.
Last week, Floyd tried yet again, filing a second motion for certificate of review in response to the denied motion for reconsideration.
This time, McAfee decided to take the issue off his own docket.
“[T]he requested motion is granted,” the judge wrote on Monday.
McAfee goes on to declare his Jan. 9 order to be “of such importance to the case that immediate review should be had,” citing language from the relevant section of Georgia law on direct appeals.
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The issue now facing the Georgia Court of Appeals is technically procedural but with a question of applicable law bearing down on the facts. Specifically, should the higher court take the case, it will have to determine whether McAfee properly applied the law in an instance where two statutes are arguably, according to the defense, in conflict.
To hear the defense tell it, an law about elections “overrides the usual rules” of the law describing how a group of citizens decides if the evidence in a legal case is enough to charge someone with a serious crime.
Both the district attorney’s office and the trial court previously stated that there is currently no conflict on the law here. This makes the uncontested issue of how Willis acted to secure the extensive RICO indictment in August of last year irrelevant for now.
Floyd's latest motion states that no referral was asked for or given. Despite the court's explanation of 'harmony' among these laws, holding that the District Attorney has equal power with the SEB, and that a referral from the SEB to the District Attorney is not needed in election-related cases, makes O.C.G.A. § 21-2-35 completely meaningless.
According to Georgia court rules, the defendant will have 10 days from the date the certificate of immediate review was issued to file his 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.
However, the case will still proceed in McAfee’s court.
At the beginning of his case, Floyd was the only one among the original 19 co-defendants to be jailed for days after post-indictment surrenders because he did not negotiate a bond in advance. After securing his freedom, Willis attempted to cancel Floyd's bond and put him back in jail because of social media posts. McAfee refused to do so last November.
Floyd’s formal permission slip is the second certificate of immediate review granted in the case so far. Progress in the case was stalled since January on a motion to disqualify Willis which was granted and denied in part earlier this month. Last week, McAfee allowed the defense to immediately appeal that ruling as well.