Trump appeals Georgia judge ruling, seeks ouster of DA Fani Willis from election fraud case
Josh MeyerCorrections & Clarifications: A previous version of this story misstated the number of defendants who filed the appeal. It has been updated with the correct number.
WASHINGTON -- Lawyers for Donald Trump and seven co-defendants filed an emergency appeal Monday of a Georgia judge's decision allowing Fulton County District Attorney Fani Willis to stay on the sweeping election fraud case against the former president. They contend the ruling doesn't go far enough by just forcing out special prosecutor Nathan Wade.
Willis and Wade admitted to having an affair, but contended that Willis did not improperly benefit from having hired Wade to oversee the case against Trump and 14 others accused of illegally conspiring to overturn the 2020 election in Georgia.
Trump lawyer Steven Sadow said the nine are seeking to disqualify Willis and the entire DA's office, which was the basis of an initial motion filed with Fulton County Superior Court Judge Scott McAfee on Jan. 8. The defendants alleged Willis had a "clandestine" affair with Wade, the private lawyer she hired to manage the case and took vacations with him that created a professional conflict of interest. McAfee let Willis stay on the case, as long as she forced out Wade to preclude any appearance of a conflict of interest going forward.
What Monday's appeal says
In their Monday appeal, Sadow and other lawyers requested that McAfee "grant a certificate of immediate review" so that the Georgia Court of Appeals can immediately take up his ruling denying dismissal of the case and disqualification of Willis.
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"The motion notes that the Court found that Willis’ actions created an appearance of impropriety and an 'odor of mendacity' that lingers in this case, but it nonetheless refused to dismiss the case or disqualify her," according to the filing.
The motion also noted that McAfee, in his order, found the continuing possibility that “an outsider could reasonably think that District Attorney Willis is not exercising her independent professional judgment totally free of anycompromising influences.”
"For these reasons among others, the Court’s Order is ripe for pretrial appellate review," Sadow said in a statement.
More:Fani Willis decision: Read the judge's full ruling on Willis in Trump election fraud case
In addition to Trump, lawyers for former Trump lawyer and New York Mayor Rudy Giuliani and former Trump White House Chief of Staff Mark Meadows joined in the appeal, as did lawyers for Michael Roman, the former Trump 2020 campaign staffer who filed the initial Jan. 8 motion to dismiss Willis, former Georgia state GOP chairman David Shafer and several Georgia officials.
Willis and the DA's office had no immediate comment on the appeal.
What the judge ruled
In a much-awaited ruling last Friday, McAfee said Willis had created the "significant appearance of impropriety that infects the current structure of the prosecution team" by having a physical relationship with Wade that began either before or after she hired him in November 2021 to oversee the sweeping election racketeering case. That ruling followed two months of combative legal arguments and three days of evidentiary hearings.
McAfee told Willis she must either fire Wade or see her office lose control of the case. Within hours, Wade − a private lawyer with virtually no experience managing complex criminal prosecutions, hand-delivered his resignation letter to Willis. She accepted it, "effective immediately."
Legal experts have said that an appeal like the kind filed Monday likely will delay any trial until after the Nov. 5 presidential election that is expected to be a hard-fought rematch between President Joe Biden and Trump, the presumptive Republican nominee.
So far, no trial date has been set, but Willis made it clear in recent months that she wanted to get one on the judicial calendar so she could ramp up ore-trial preparation. She hasn't commented on McAfee's ruling or said what she plans to do now that she's allowed to stay on the case.
An appeal of McAfee's ruling could easily halt such preparations, especially if a stay is ordered that essentially freezes things in place while the appeal is considered. And any decision by an appellate court likely would then go to the Georgia Supreme Court, legal experts have said.
Further complicating matters is that Sadow and other defense lawyers have complained that Willis was not only guilty of professional misconduct stemming from her personal relationship with Wade, but also "forensic" misconduct by making racially charged statements about the case.
Those include Willis' fiery sermon-like speech at an Atlanta church on Jan. 14 and other efforts to play "the race card" that defense lawyers said could prejudice the pool of potential jurors for the trial.
A sharp rebuke for Willis
A Fulton County grand jury initially charged 19 people, including some top former Trump campaign and administration House aides, with conspiring with the former president to overturn the results of the 2020 election in Georgia that Trump lost to Biden. Four have since pleaded guilty and agreed to cooperate. The others, including Trump and former New York Mayor and Trump lawyer Rudy Giuliani, have pleaded not guilty.
McAfee’s ruling was a stark rebuke for Willis, who defiantly insisted she had done no wrong in dramatic court testimony last month and in a sworn affidavit.
More:Fani Willis hearing: a salacious drama that could undermine Trump election interference case
If Willis had refused to remove Wade, McAfee said, he would refer the case to the Prosecuting Attorneys’ Council of Georgia for reassignment − an option that would almost certainly delay the trial well past the Nov. 5 presidential election. No trial date has been set.
The Georgia prosecution is one of two criminal cases against Trump that focus on his efforts to overturn the results of the 2020 election he lost to Biden. Firing Wade, the judge said, will allow “the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.”
Using 'all legal options available'
After McAfee's ruling, though, Sadow was one of several defense lawyers who strongly hinted that they would appeal.
"While respecting the Court’s decision, we believe that the Court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade, including the financial benefits," Sadow said in a statement to USA TODAY. He was referring to defense lawyers' allegations that Wade spent some of the more than $650,000 he's received for overseeing the case on vacations with Willis without requiring her to pay him back.
Willis and Wade denied that, but the McAfee said Friday that both had severely damaged their credibility while on the witness stand. He said "an odor of mendacity remains," and that there were "reasonable questions" over whether they had "testified untruthfully about the timing of their relationship."
"We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place.”
Ashleigh Merchant, the lawyer who first filed the disqualification motion on behalf of Trump associate and co-defendant Michael Roman, also said McAfee's ruling did not go far enough. But, she added, "While we believe the court should have disqualified Willis’ office entirely, this opinion is a vindication that everything put forth by the defense was true, accurate and relevant to the issues surrounding our clients right to a fair trial."
A third co-defendant, former Trump campaign lawyer and New York Mayor Rudy Giuliani, said through a spokesman that the decision revealed clear evidence of prosecutorial misconduct.
"It defies logic for Fani Willis or Nathan Wade to remain on this case, considering the clear evidence of prosecutorial misconduct, including evidence of financial gain and providing untruthful testimony,” said Ted Goodman, a Giuliani spokesperson.