UPDATE (Dec. 19, 12:57 p.m. ET): Fulton County District Attorney Fani Willis’ office has filed a notice of intent to appeal Thursday’s decision disqualifying her and her office from prosecuting the state election interference case against Donald Trump and others. Thursday’s decision was issued by the Georgia appeals court and Willis’ notice signaled her intention to petition the state’s supreme court to review the ruling.
A divided three-judge panel of the Georgia appeals court ruled that Fulton County District Attorney Fani Willis and her office should be disqualified from prosecuting the state election interference case against Donald Trump and others.
“After carefully considering the trial court’s findings in its order, we conclude that it erred by failing to disqualify DA Willis and her office,“ the court said on Thursday.
Trump and other defendants in the case had argued Willis improperly profited from the hiring of special prosecutor Nathan Wade, with whom she had a romantic relationship, and that it gave the elected district attorney an impermissible stake in the prosecution. In March, the trial judge, Scott 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 Wade had to go. Wade resigned that same day.
“The remedy crafted by the trial court to prevent an ongoing appearance of impropriety did nothing to address the appearance of impropriety that existed at times when DA Willis was exercising her broad pretrial discretion about who to prosecute and what charges to bring,“ the appeals court said in the opinion by Judge Trenton Brown, joined by Judge Todd Markle.
“While we recognize that an appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings,” Brown wrote.
Reversing McAfee’s resolution, the majority stressed that Willis hadn’t appealed the trial judge’s finding that there was an appearance of impropriety. “Accordingly, whether the evidence presented to the trial court adequately supported, under the appropriate standard of review on appeal, its finding of the existence of an appearance of impropriety is not before this Court,” the panel majority explained.
“Instead,” it continued, “we must determine whether the remedy fashioned by the trial court for this undisputed finding of a ‘significant’ appearance of impropriety was improper as contended by the appellants.” The appeals court concluded that it was, so it reversed that aspect of McAfee’s ruling.
The appeals court declined to dismiss the indictment as the defense requested, but Willis and her office being kicked off the case adds uncertainty to how it can continue. If the ruling stands after any further appeal taken by Willis to the state supreme court, it’s unclear when a new office or prosecutor would take on the complex prosecution against Trump and several co-defendants. Trump would likely not face criminal proceedings while he’s in office after he’s inaugurated next month but other co-defendants remain in the case. So even though the appeals court declined to dismiss the case, it remains to be seen whether the disqualification ruling effectively amounts to a dismissal if it stops the case from moving forward. A dissenting judge said the majority’s opinion was unsupported by law and called it particularly troubling that the majority interfered with the trial judge’s discretion. “Given the unique role of the trial court and the fact that it is the court which has broad discretion to impose a remedy that fits the situation as it finds it to be, we should resist the temptation to interfere with that discretion, including its chosen remedy, just because we happen to see things differently,” Judge Ben Land wrote in the dissent that would likely be cited by Willis and her office if they appeal. The Atlanta Journal-Constitution noted that all three judges are GOP appointees and the outlet reported that Willis is expected to appeal to the state top court. The Georgia ruling comes as the Republican president-elect is trying to get his other state prosecution, in New York, dismissed before he takes office, and it follows the dismissal of his two federal criminal cases. 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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