Judge Allows ‘Immediate’ Review of Fani Willis Disqualification, Agrees With Trump That Ruling Is of Great ‘Importance’

The baton is passed to the Georgia Court of Appeals, which will decide whether to review the district attorney’s fate on the case.

AP Photo/Brynn Anderson, File
Fulton County District Attorney Fani Willis speaks during an Associated Press interview on Tuesday, December 12, 2023, at Atlanta. AP Photo/Brynn Anderson, File

The decision by Judge Scott McAfee to grant President Trump a certificate of immediate review means that the fate of District Attorney Fani Willis atop his prosecution is far from settled.

Mr. Trump’s lawyer, Steven Sadow, in a statement, calls the grant “highly significant” and is “optimistic that appellate review will lead to the case being dismissed” and the disqualification of Ms. Willis. The 45th president is joined in that effort by eight of his fellow defendants in the district attorney’s sprawling racketeering case. 

Georgia law mandates that a disqualification decision like Judge McAfee’s — he ruled that Ms. Willis or her special prosecutor and former boyfriend, Nathan Wade, had to resign — can only be appealed before trial if the district judge certifies that the issue “is of such importance to the case that immediate review should be had.”

Mr. Wade, who has never prosecuted a felony but has been paid more than $650,000 for this case, stepped aside hours after Judge McAfee’s decision. Ms. Willis stayed on, despite the judge finding that an “odor of mendacity” wafted through her testimony with respect to when the romance began. Judge McAfee also faulted her for a “tremendous lapse in judgment.”

Judge McAfee’s criticisms did not end there. He scrutinized her speech on Martin Luther King Jr. Day at Big Bethel AME Church, where she accused her opponents of “playing the race card.” The 34-year-old judge found that to be “legally improper,” though he did not rule that it was “forensic misconduct” of the kind to warrant disqualification. 

By granting Mr. Trump et al. his certificate, Judge McAfee passes the baton to the Georgia Court of Appeals, which will review the ruling and decide whether it wants to take it up, on either a usual or expedited basis. In the meantime, though, the case will not be frozen. Judge McAfee writes that he “intends to continue addressing the many other unrelated pending pretrial motions, regardless of whether the petition is granted.” 

If the Georgian judges decide to take up the disqualification question, they could begin with Judge McAfee’s finding of a “significant appearance of impropriety” with respect to how Ms. Willis handled her personal relationship with Mr. Wade. He did not, though, find an “actual conflict of interest” and so demurred from booting her from the case, instead settling for sundering the working relationship between the former lovers.

The appellate court will be looking to see if Judge McAfee made a “reversible error,” and one point they could ponder is whether he applied the correct standard in ruling that an appearance of impropriety was not enough to disqualify Ms. Willis. The Fulton County ethics code, for example, mandates that the “appearance of impropriety can exist even in the absence of actual impropriety.”

Now that Judge McAfee has granted the certificate, the lawyers for the defendants will have 10 days to draft their appeal. The appellate court will then have 45 days to decide whether to take up the issue. If Ms. Willis is eventually disqualified, it will fall to the executive director of the Prosecuting Attorneys’ Council of Georgia, Pete Skandalakis, to find a replacement.

Mr. Skandalakis told NBC News last month that in the event of disqualification, he would “begin by looking for who has the resources and capability — not only personnel and expertise but also financial.” He adds that “you’re looking for someone who’s a neutral arbiter and can make decisions based upon the evidence.” 

The New York Sun

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