If you’ve been following the Georgia election interference case, you might know that it’s been tied up on a pretrial appeal, in which Donald Trump and several co-defendants are trying to kick Fulton County District Attorney Fani Willis off the case. While that sideshow is pending, Willis just appealed the trial judge’s dismissal of some counts in the case, including counts relating to Trump’s alleged pressuring of Georgia Secretary of State Brad Raffensperger.
Though every move in this criminal case has potential significance, the ultimate outcome might not hinge on whether these discrete counts are revived. That’s partly because the main racketeering charge remains intact. So, for example, prosecutors should still be able to present evidence of Trump’s alleged pressuring of Raffensperger, because that’s alleged in the racketeering count as well. (Trump has pleaded not guilty.)
In one of the more memorable aspects of the alleged Trump-backed scheme to subvert the 2020 election he lost to Joe Biden, the former president told Raffensperger in a Jan. 2, 2021, phone call: “I just want to find 11,780 votes, which is one more than we have. Because we won the state.” He didn’t win the state; Biden did.
Of course, any prosecutor in any case would rather not lose any charges they’ve brought. And in this unusual situation with the pretrial disqualification appeal pending, prosecutors with Willis’ office might have figured that they might as well try to revive the counts while the case is already on appeal.
What’s been holding up the case is the disqualification appeal. The trial judge, Scott McAfee, ruled in March that Willis could stay on the case if special prosecutor Nathan Wade, with whom she had a romantic relationship, stepped down. Wade did so, but Trump and co-defendants are still seeking Willis and her office’s disqualification and the wholesale dismissal of the state election interference case. The state appeals court has already said it would hear oral arguments on the disqualification bid in December.
It’s unclear how both appellate issues — the count dismissals and the disqualification effort — will be resolved. That’s because the law in Georgia is uncertain on both matters. “The only Georgia case concerning this issue does not provide a clear analog to this case,” prosecutors with Willis’ office wrote to the state appeals court in a filing Tuesday.
Still, they argued that McAfee was wrong to dismiss six counts of a crime called solicitation of violation of oath by public officer. The judge had ruled the allegations related to these counts were insufficiently detailed.
“Consideration of cases from other jurisdictions, which is appropriate due to the lack of Georgia precedent … makes clear that the details of a target crime are not required to be pleaded with particularity so long as a defendant is placed on notice of what of his own conduct is at issue that constituted solicitation,” prosecutors wrote to the appeals court. They added that “facts and context from other counts of the indictment” give the defendants enough details. For example, they pointed to the racketeering count in the indictment, which ties into the rest of the case regarding the overarching goal of the alleged conspiracy: “unlawfully chang[ing] the outcome of the [2020 presidential election in Georgia] in favor of Trump.” In a separate appeal that’s pending at the U.S. Supreme Court, one of Trump’s co-defendants, Mark Meadows, is trying to move his charges in the Georgia state case to federal court. The justices haven’t decided whether they’re taking up the former Trump White House chief of staff’s appeal, but if they do, it would add yet another wrinkle to the already-hobbled case. 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 Donald Trump’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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