While America awaits a final decision on whether Fulton County District Attorney Fani Willis will be disqualified, much more than the future career of one prosecutor is at stake. If Judge Scott McAfee grants the motion to disqualify, then Willis will no longer be the prosecutor on the state RICO case against former President Donald Trump and his remaining 15 co-defendants. If she is disqualified, then under applicable Georgia law and procedure, the entire Fulton County DA’s Office is also off the case. The decision of who should take over the reins is then given to a state prosecutors’ council with an unclear timeline on assigning a new DA. As a result, Trump’s RICO case could potentially be stalled for months as the reassignment decision is made.
Trump continues to deploy a tried-and-true page out of his playbook in attempting to delay his multiple pending criminal cases.
Trump continues to deploy a tried-and-true page out of his playbook in attempting to delay his multiple pending criminal cases. Any additional delays from this disqualification motion inures only to his benefit. And the longer it takes for the twice-impeached, quadruple-indicted, disgraced one-term ex-president to face accountability, the more jaded and disenchanted Americans become with the equities (or lack thereof) in our judicial system.
A new DA on the case could also decide not to pursue the existing RICO charges and other offenses that have been charged against Trump and his co-defendants. Prosecutorial discretion allows for a new DA’s office to review the charges and decide if it wants to continue along the path that Willis set forth at the beginning of the case.
On the other hand, if McAfee determines that the defense failed to meet its burden to disqualify Willis, then Willis continues as the lead prosecutor and, hopefully for all involved, the case is finally set for trial, and Willis has a chance at holding Trump accountable for interfering with the 2020 election.
Since the evidence was closed on Feb. 27, several defendants have tried repeatedly to reopen the evidence to introduce what they allege is new evidence relevant to the issues in the disqualification hearing: For example, defendant Cathy Latham alleges the attorney for co-defendant Kenneth Chesebro had “several conversations with attorney Terrence Bradley regarding the relationship between District Attorney Willis and Nathan Wade” and that “Mr. Bradley stated that he had personal knowledge of the relationship between Mr. Wade and district Attorney Willis.” Defendant David Shafer also claimed that he could present a local district attorney, Cindi Lee Yeager, who he asserted also had “numerous, in-person and other conversations” with Bradley in which information relating to Willis and Wade was discussed.
And despite these proffers, McAfee has declined to reopen the evidence, and I think his choice is telling. Perhaps we will get the answer in his final ruling on the disqualification motion, but in my opinion, I think it’s because McAfee doesn’t need that additional evidence to make his decision.
McAfee is not required to reopen the evidence simply because the defense continues to stumble upon information that it thinks may be relevant and important. He already presided over multiple days of multiple hours of an evidentiary hearing. There was testimonial evidence and documentary evidence entered into the record. McAfee is not required to reopen the evidence simply because the defense continues to stumble upon information that it thinks may be relevant and important. At some point in time, the evidence becomes repetitive and duplicative. Furthermore, the quality of that proffered evidence is also a consideration: The source of this purported information boils down to Bradley, whose credibility was already destroyed on the witness stand. Judges also have to consider the admissibility of that evidence, and the hearsay issues in these proffers raise a lot questions. Ultimately, that he has not yet reopened the evidence suggests that McAfee has made up his mind, and the introduction of additional testimony will not move the needle on that decision. At the conclusion of the summations, McAfee announced that he would write his decision in about two weeks. During a recent radio interview just a few days ago, he confirmed that he was on track to meet that self-imposed deadline. That would mean by this Friday, Willis should know her fate. And America should learn the fate of an important criminal case. Trump has complained bitterly about these prosecutions being political motivated “witch hunts,” filing motions to dismiss for selective prosecution. If he makes it to the Oval Office for a second term, those federal cases will likely go away. So when it comes to accountability, this Georgia case making it to a jury verdict is arguably even more important than his pending federal criminal cases that might not make it to trial before November.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
