Main image: Fulton County Superior Judge Scott McAfee speaks in court. (AP Photo/Brynn Anderson, Pool); Inset left: Donald Trump speaks in Rome, Ga. (AP Photo/Mike Stewart, File); Inset right: Fulton County District Attorney Fani Willis looks on during a hearing in Atlanta. (AP Photo/Alex Slitz, Pool)
Donald Trump and eight co-defendants have appealed a recent decision by a trial court judge recent decision to keep Fulton County District Attorney Fani Willis Fani Willis in charge of the racketeering (RICO) and election subversion case in Georgia.
The defense has been trying to remove Willis and her office from the case since January due to allegations of a conflict of interest because of her romantic relationship with lead prosecutor Nathan Wade.
On March 15, Fulton Superior Court Judge Scott McAfee partially granted the defense motion to disqualify but allowed the prosecution to choose which prosecutor had to go. The court’s order was based on a finding that the romance between Willis and Wade resulted in an appearance of impropriety. Wade resigned hours later.
Now, the defendants claim the trial court made a legal error by separating the legal issues and are appealing based on McAfee's factual record.
In the case, Trump and his alleged co-conspirators are charged over numerous actions taken in the aftermath of the 2020 election — including the fake or “contingent” electors scheme, directions to declare the election “corrupt,” and instructions to halt the counting of electoral votes.
The defense argued that the district attorney hired her then-boyfriend for the job and received gifts paid for with public funds, but the court found they did not prove that Willis obtained a financial benefit or that her relationship motivated her to prosecute the case.
The appeal is based on allegations of forensic misconduct against Willis over her Martin Luther King Jr. Day speech at Big Bethel A.M.E. Church in Atlanta, which the defense says was a public response to the nepotism allegations.
The appeal claims the trial court made a legal error by not requiring Willis' dismissal and disqualification based on her out-of-court statements and apparent conflict of interest.
The defense accuses the district attorney of using the nationally-televised speech to make “
offensive illegal racially discriminatory statements” about the defendants and of improperly fueling “racial hostility” to influence potential jurors in retaliation for, and to divert attention from, the allegations raised in the motion to disqualify.McAfee was harsh in his previous assessment of this speech.
“The impact of this speech was to make racial accusations towards an accused defendant’s decision to file this pretrial motion,” the judge wrote.
The defense claims that the trial court’s decision not to dismiss Willis and her office from the case was “legal error” that requires immediate review.
“In that speech, DA Willis, while concealing her personal relationship with SADA Wade, improperly brought up race and racial prejudice in the case, suggesting that defendants and their counsel were racists for questioning her unethical behavior,” the appeal reads. “[T]he fact that DA Willis has intentionally and publicly brought up race, racial prejudice, and religion in this case (and any potential jury pool) makes the disqualification of DA Willis and her Office particularly necessary and appropriate.”
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Additional forensic misconduct allegations against Willis are outlined in the
51-page application to the Georgia Court of Appeals. Similarly, the defense alleges Willis worsened and intensified her problems in response to the initial nepotism allegations raised by co-defendant Michael Roman — both in court and in court documents.
From the appeal, in detail:
As Law&Crime
The forensic misconduct in this case is not limited to DA Willis’ improper extrajudicial statements evidencing her opinion of the defendants’ guilt, her claims to be ordained by God himself to convict these defendants, or her falsely disparaging Defendants and their counsel as racists … DA Willis engaged in additional — and even more deeply troubling — forensic misconduct. She knowingly filed a false sworn affidavit of former Special Prosecutor Nathan Wade as part of the State’s response to Defendants’ motions, and she lied to the court under oath in her testimony before the trial court.
previously reported , McAfee expressed a significant amount of frustration with some of the state’s behavior — and strongly suggested that Willis was not truthful when forced to explain her eventually-acknowledged relationship with Wade — but felt that his hands were tied by precedent, or the lack thereof.A footnote criticizes McAfee for his trepidation:
Lawyers for the 45th president urge the appeals court “to correct” the “numerous legal errors” in McAfee’s partial dismissal order. And, in another footnote, faults the judge for limiting his own options by issuing seemingly condemning facts while ultimately delaying a decision.
The trial court stopped short of making a specific finding that DA Willis lied to the court, saying that “the Court is not under an obligation to ferret out every instance of potential dishonesty from each witness or defendant ever presented in open court.” Maybe so. But when the record evidence clearly shows that the DA, who is prosecuting one of the highest profile cases in the country, even arguably gave untruthful testimony under oath in the very case in which her office is prosecuting many of the defendants for allegedly perjuring themselves and making false statements, the need to address this behavior and to disqualify her from further participation in the prosecution is of the highest necessity.
“The trial court was obviously concerned in its Order about the lack of appellate guidance,” the other footnote reads. “But the absence of precedent involving circumstances similar to those in this case, however, is hardly surprising. No prosecutor has ever been so reckless and relentless in pursuit of personal gain.”
The defense argues the district attorney’s efforts in responding to the original conflict of interest allegations have caused bias that cannot be reversed as long as she remains on the case.
“[D]ismissal is the truly appropriate remedy because the disqualification of DA Willis and her office cannot fully undo the damage caused to Defendants and their due process rights,” the appeal reads. “But her disqualification is the minimum that must be done to remove the stain of her legally improper and plainly unethical conduct from the remainder of the case.”
The appeal, as its tertiary argument, goes on to fault the trial court for finding that Willis had created “significant appearance of impropriety,” but for not following Peach State law by removing her.
The appeal argues that the law does not require disqualifying one conflicted lawyer without disqualifying another, even though the trial court did so. If Wade needed to be disqualified, then DA Willis also needed to be disqualified.
The appellate court has until April 13 to decide whether or not to consider the defense appeal.
Law&Crime contacted the district attorney’s office for comment, but did not receive an immediate response.
The law does not specify that only one apparently conflicted lawyer should be disqualified for an appearance of impropriety.