Main image: Fulton County Superior Judge Scott McAfee speaks in court, Tuesday, Feb. 27, 2024, in Atlanta. (AP Photo/Brynn Anderson, Pool); Inset left: Fulton County District Attorney Fani Willis testifies during a hearing on the Georgia election interference case, Feb. 15, 2024, in Atlanta; (Alyssa Pointer/Pool Photo via AP); Inset right: Former President Donald Trump waits for the start of a UFC 299 mixed martial arts bout, early Sunday, March 10, 2024, in Miami. (AP Photo/Wilfredo Lee)
The Georgia Court of Appeals on Wednesday paused the racketeering (RICO) and election subversion case against former President Donald Trump and others over issues related to the ongoing disqualification effort aimed at Fulton County District Attorney Fani Willis.
In a terse, one-page ruling, the Peach State’s second-highest court said proceedings in the long-delayed lower court case are now “hereby stayed pending the outcome of these appeals.”
The appellate court cited precedent from an unpublished order in an overruled 2004 Georgia Supreme Court case that stands for the proposition of “staying underlying proceedings in a criminal cases after granting interlocutory review.” The appeals court noted, however, that the case in question was overturned “on other grounds.”
The decision is a decided loss for Willis, who lobbied hard against the appellate court’s intervention in the first place. The move likely means the long-delayed trial process is unlikely to play out any time in 2024.
Or any time in the near future, really.
As the appellate court considers the issues, both the defense and the state will have the opportunity to file motions, briefs, and reply briefs. There is also the potential for oral argument before the court — which will take some time, finally, to deliberate the outcome.
In the event Willis remains on the case, the defense would almost certainly next appeal the decision to the Georgia Supreme Court. In a change of fortune situation, with Willis being removed, the state would be put in an awkward position of whether to move forward with another prosecutor or file its own appeal in order to keep the district attorney on the case. But in either event, the process would likely take something on the order of years opposed to months.
More Law&Crime coverage: DA Fani Willis appealing RICO judge’s dismissal of multiple charges against Trump and Giuliani as former president tries to oust her from 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 eventually 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 claim Roman played a relevant — and 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.
After the appeals court decided to take up the case against Willis, the defendants filed for a stay pending the results of the appeal. Now any proceedings, pretrial or otherwise, have been kiboshed.
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.
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