When Georgia’s top court declined last month to hear Fani Willis’ bid for reinstatement to prosecute Donald Trump and others, I noted that the rejection could effectively end the beleaguered criminal case. A subsequent order from the trial judge overseeing the state election interference case reinforces that it could be headed for dismissal in the wake of Willis’ disqualification.
That order came Friday from Fulton County Superior Court Judge Scott McAfee. He gave a deadline of two weeks for a newly assigned prosecutor — or the independent panel that assigns new prosecutors when there’s a conflict, as there is here — to make an appearance or to seek a “particularized extension.” The “particularized” wording suggests that the judge needs a good reason for further delay and that such a request won’t be automatically granted.
A fairly detailed extension request came Monday from Peter Skandalakis, the head of that independent panel, the Prosecuting Attorneys’ Council of Georgia.
Skandalakis, a Republican, noted that the complexity of the case requires “vast personnel and resources” to handle, and so, he explained, “it will require time” to find someone “willing to take on this prosecution.” He also said that he doesn’t even have the case file and that he doesn’t expect to get it from Willis’ Atlanta office for another month. “Without having the file,” Skandalakis said, he can’t “intelligently answer questions of anyone requested to take the appointment or to do his own diligence in finding a prosecutor who is not encumbered by a significant appearance of impropriety.” He asked McAfee either to reconsider the two-week deadline or to grant at least three months from the time that Skandalakis gets the file to appoint a new prosecutor.
Skandalakis added that the Trump case is one of 21 matters awaiting appointment by his office. “Each case requires individual review and assignment due to the unique nature of conflicts and the facts and circumstances of the particular case,” he wrote to McAfee.
However the trial judge chooses to handle the extension request, it further highlights why the case may be headed for dismissal sooner or later. I previously noted that, with Willis and her office disqualified, the complexity that Skandalakis raised in his extension request could doom the case.
A prime example of this came before Trump and his co-defendants were charged in the sprawling case in 2023. Willis, a Democrat, had been disqualified from investigating Georgia’s Republican lieutenant governor, Burt Jones, after she hosted a fundraiser for a Democrat who would become Jones’ opponent in the 2022 election. That meant a new prosecutor needed to take over, which falls to Skandalakis’ panel to decide. After nearly two years, Skandalakis said he would handle it himself and then announced he wouldn’t seek charges against Jones. And that involved just one person, albeit a high-profile one — though there are many high-profile defendants in the complex Trump case even besides the president.
The state’s top court was divided last month when it declined to hear Willis’ appeal, with dissenting justices writing that it would have been worth resolving the legal question of whether a lawyer can be disqualified “based on the appearance of impropriety alone.”
The legal issue in the appeal didn’t involve the substance of the charges against Trump and his co-defendants for allegedly attempting to criminally subvert the 2020 election, which he lost to Joe Biden. Rather, it involved the defense claim that Willis improperly profited from the hiring of special prosecutor Nathan Wade, with whom she had a romantic relationship, and that it gave her an impermissible stake in the case. 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 office) or Wade had to go. Wade resigned. But a divided state appeals court panel said McAfee failed to cure the appearance of impropriety when he let Willis stay on the case. Even if a new prosecutor takes on the Trump case, the viability of the charges are still being litigated pretrial, and Trump himself wouldn’t be prosecuted while he’s in office. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
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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