UPDATE (March 20, 2024, 11:05 a.m. ET): Judge Scott McAfee has granted a certificate of immediate review, which lets Donald Trump and several of his co-defendants appeal McAfee’s order allowing District Attorney Fani Willis to stay on the case. A state appellate court still has to decide whether to take up the appeal.
Judge Scott McAfee said Friday that Fani Willis can stay on the Georgia prosecution of Donald Trump and his co-defendants. But the ruling can potentially be appealed pretrial, so it might not be the last word on a subject that has already delayed the case.
It’s important to note that there isn’t an automatic right to appeal at this stage. Rather, McAfee would need to grant permission to do so within 10 days of his ruling, and then the state appeals court would need to agree to hear the case. If that happens, it could bring yet more delay to the prosecution that doesn’t even have a trial date yet and has already been sidetracked by the disqualification motion that led to McAfee’s ruling.
It’s unclear if the judge would grant such permission to appeal at this stage. In a recent unrelated ruling in which he dismissed some of the indictment’s counts, McAfee said he’d be inclined to permit an appeal of that ruling. But he didn’t say that in his disqualification order. That doesn’t automatically mean he wouldn’t permit an appeal, but he didn’t go out of his way to signal his openness to the idea like he did in his dismissal ruling.
In his disqualification order, McAfee said that the defense failed to prove an actual conflict of interest, but that the appearance of impropriety meant that either Willis (and her whole office) or special prosecutor Nathan Wade had to go. Wade resigned that same day. Though he deemed a speech she gave improper, McAfee declined to disqualify Willis because of alleged “forensic misconduct” based on it. If defendants are allowed to mount an appeal, they could cite the damning facts McAfee found to argue that he reached the wrong legal conclusion by not disqualifying Willis. But first, we’ll see if McAfee even grants permission for the appeal at this pretrial stage. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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