Fani Willis thrown off Trump case? Election fraud charges dismissed? A look at the key Georgia case
Josh MeyerThe saga of whether Fulton County District Attorney Fani Willis will be disqualified from prosecuting Donald Trump and 14 others for allegedly trying to steal the 2020 election in Georgia is far from over. And whether the case will go to trial before the next election this November is anybody's guess.
A judge ruled Friday that Willis could keep her control of the election fraud case against the former president if special prosecutor Nathan Wade, with whom she had an affair, stepped down. Wade did so hours later, allowing the sweeping racketeering case to go forward.
On Monday, Trump and seven other defendants filed an emergency appeal, asking the presiding judge, Scott McAfee, to allow them to go right to the Georgia state Court of Appeals to overturn his decision instead of waiting until after the trial.
An eighth defendant joined soon after. And on Wednesday, McAfee approved the emergency request, allowing Trump and the others to again make the case that Willis and the entire election case have to go.
In their request asking McAfee to grant a certificate of immediate review, the lawyers said his decision didn't go far enough. They not only want Willis and her entire office thrown off the case, but the charges dismissed altogether, as some of them petitioned in their initial court motions back in January.
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An 'odor of mendacity' remains on the case
McAfee found that the defendants failed to meet their burden of proving that Willis created "an actual conflict of interest through her personal relationship and recurring travels with her lead prosecutor."
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"However, an odor of mendacity remains," McAfee wrote, saying Willis and Wade had severely damaged their credibility while on the witness stand. As a result, he said, "reasonable questions" remained over whether they had "testified untruthfully about the timing of their relationship," which they said began after Wade joined the case.
So what happens next? Legal experts disagree about whether Willis will manage to bring the case to trial anytime soon, especially now that Trump's appeal will go before the higher court.
Historic decisions ahead in Trump election case
But one thing they agree on is that McAfee's decision, and whether it is upheld on appeal, are not merely procedural questions.
"There are two $50 million questions right now on which arguably the history of the world depends," Clark Cunningham, a professor of law and ethics at Georgia State University College of Law, told USA TODAY.
"Whether or not there's a televised trial of Donald Trump in Fulton County before the election could affect the election result. And what happens right now could very much affect the question of whether we have a Trump trial right before the election," Cunningham said. "So that's why these seemingly procedural matters are, I think, of potentially historic importance."
Here are some key things to watch for:
What happens next with the Fani Willis appeal?
Under Georgia law, McAfee himself needed to approve the defendants' emergency request to seek a review by the state appellate court.
According to Cunningham, Trump and the other defendants now have 10 days to ask the higher court to permit the appeal. The appeals court would have 45 days to decide whether to hear it.
"So theoretically, the process could last 65 days before we even know whether there's going to be a discretionary appeal," Cunningham told USA TODAY. "Or it could happen more quickly of course."
What's the status of the case against Trump in the meantime?
For now, the case remains intact, although more narrowly focused because McAfee, a Fulton County Superior Court judge, dismissed six charges last week in a move unrelated to his decision over whether to disqualify Willis.
Trump and the other defendants are charged with conspiring to overturn President Joe Biden's narrow 2020 win in the Peach State. Among those charged: Trump White House Chief of Staff Mark Meadows, former New York mayor and Trump lawyer Rudy Giuliani and Trump 2020 campaign staffer Michael Roman, who first disclosed Willis' romantic relationship with Wade in a bombshell Jan. 8 motion.
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 pre-trial preparation. She hasn't commented on her plans since Friday's ruling, and a spokesman had no comment on how Willis will respond to the emergency appeal seeking her ouster.
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Will Trump's appeal of Willis being allowed to stay on the case be heard?
Cunningham accurately predicted that McAfee would approve of the emergency appeal going forward.
"McAfee is sort of the epitome of judiciousness. He's very objective. He's very patient. He seems almost modest as a judge, and I think he might say, 'Look, I shouldn't stand in the way of Trump getting a second opinion on this question,' " Cunningham said.
But Cunningham is less convinced the Court of Appeals will take the case, given what he says is its history of deferring to the judgement of the trial judge.
Either way, he said, whoever loses almost certainly will appeal to the Georgia Supreme Court, making it even less likely that Trump and others will sit before a jury before Election Day on Nov. 5.
If McAfee rejects the new request, the defendants have no recourse and the prosecution will move forward, Chris Timmons, a former prosecutor in neighboring Cobb County, and Cunningham both said.
Is the case on hold?
Willis and the DA's office haven't commented on what behind-the-scenes trial preparations they've been making over the past 10 weeks while fighting the motion to dismiss, but it's likely that much of it has been deferred. Usually that involves preparing witnesses and fine-tuning legal strategy.
That's especially necessary with such a complicated prosecution such as this one, in which Willis plans to use the Racketeer Influenced and Corrupt Organizations, or RICO, statute against Trump and the other alleged co-conspirators.
If the appeal of McAfee's ruling goes forward, and any appeal by the losing sidecould easily stall trial preparations for many months more.
But as part of his ruling Wednesday, McAfee said that "unless directed otherwise by an appellate court," he will allow some aspects of the case to move forward.
"The Court intends to continue addressing the many other unrelated pending pretrial motions," McAfee wrote, "regardless of whether the petition is granted Fulton County Superior Court."
More complications, more delays?
Further complicating matters is that defense lawyers, led by Steven Sadow for Trump in the appeal, aren't just seeking to oust Willis and her office because of alleged professional conflict of interest stemming from her personal relationship with Wade.
They're also claiming "forensic" misconduct, which Cunningham describes as making improper and potentially prejudicial statements. In the filing, Sadow cites a sermon-like speech Willis gave at a historically Black church in Atlanta Jan. 14 in which she complained that she and Wade were being attacked on the basis of their race.
In his decision, McAfee said Willis' speech was “legally improper” but denied the defendants' request for her to be disqualified on the basis of it because Georgia law was unclear.
That prompted Sadow, in a statement speaking for all eight appealing defendants, to argue that the lack of clarity or precedent under Georgia law was another reason why McAfee's order "is ripe for pretrial appellate review."
Who will take over for Wade in overseeing the case?
Willis has a large staff of prosecutors, including some very experienced trial litigators, Timmons said. He singled out Michael Scott Carlson, the executive district attorney in charge of the Major Crimes Division. She has also used two prominent Georgia attorneys on the case who are well versed in complex prosecutions, Anna Cross and John Floyd.
Cross was one of a handful of lawyers who argued the case against disqualifying Willis before Judge McAfee.
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Floyd, who Willis hired as a special prosecutor just like Wade and Cross, is a renowned expert in using RICO to go after broad conspiracies like the one alleged in the election fraud case. When Willis was a line prosecutor before becoming DA, she used Floyd to help her win a career-defining RICO case against dozens Atlanta public school educators accused in a cheating scandal.
What’s next for the case for Willis and Trump?
If Trump and the other defendants manage to overturn McAfee's decision, the underlying case could be thrown out entirely, or given to another DA's office in the state to start from scratch, Cunningham said.
Even if Willis prevails, she faces the daunting task of navigating the complex legal terrain surrounding Trump’s alleged election interference while also dealing with accusations of impropriety. She is likely to face a flurry of motions questioning her leadership of the case too as it proceeds to trial, as well as a variety of other legal challenges.
Other defendants include former Justice Department lawyer Jeffrey Clark, former Georgia state senator and former state Republican Chairman David Shafer and others in Georgia charged with intimidating election workers or working to illegally alter votes from Biden to Trump. All have pleaded not guilty.
Four others have pleaded guilty and are cooperating in the case, including former Trump campaign lawyer Jenna Ellis and legal adviser Sidney Powell.