ATLANTA – Former President Donald Trump and eight other defendants accused of illegally trying to interfere in the 2020 election in Georgia on Friday submitted a formal application to appeal a judge's ruling allowing Fulton County District Attorney Fani Willis to remain on the case.
Trump and other defendants had tried to get Willis and her office tossed off the case, saying her romantic relationship with special prosecutor Nathan Wade created a conflict of interest. Superior Court Judge Scott McAfee earlier this month found that there was not a conflict of interest that should force Willis off the case but said that the prosecution was “encumbered by an appearance of impropriety.”
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McAfee ruled that Willis could continue her prosecution if Wade left the case, and the special prosecutor resigned hours later. Lawyers for Trump and other defendants then asked McAfee to allow them to appeal his ruling to the Georgia Court of Appeals, and he granted that request.
The filing of a formal application with the appeals court is the next step in that process. The Court of Appeals has 45 days to decide whether it will take up the matter. McAfee has said he plans to continue to press on with the case in the meantime — to that end, he held a motions hearing Thursday.
The allegations that Willis had improperly benefited from her romance with Wade upended the case for weeks. Intimate details of Willis and Wade's personal lives were aired in court in mid-February, overshadowing the serious allegations in one of four criminal cases against the Republican former president. Trump and 18 others were indicted in August, accused of participating in a wide-ranging scheme to illegally try to overturn his narrow 2020 presidential election loss to Democrat Joe Biden in Georgia.
All of the defendants were charged with violating Georgia’s Racketeer Influenced and Corrupt Organizations, or RICO, law, an expansive anti-racketeering statute. Four people charged in the case have pleaded guilty after reaching deals with prosecutors. Trump and the others have pleaded not guilty.
The appeal application says McAfee was wrong not to disqualify both Willis and Wade from the case, saying that “providing DA Willis with the option to simply remove Wade confounds logic and is contrary to Georgia law.”
The application says dismissal of the case is “the truly appropriate remedy” because the damage done to the defendants and their due process rights cannot be fully undone even by disqualifying Willis and her office. But her disqualification is “the minimum that must be done to remove the stain of her legally improper and plainly unethical conduct from the remainder of the case,” it says.
A spokesperson for Willis declined to comment.
The allegations against Willis first surfaced in a motion filed in early January by Ashleigh Merchant, a lawyer for former Trump campaign staffer and onetime White House aide Michael Roman. The motion alleged that Willis and Wade were involved in an inappropriate romantic relationship and that Willis paid Wade large sums for his work and then benefitted when he paid for lavish vacations.
Willis and Wade acknowledged the relationship but said they didn't begin dating until the spring of 2022, after Wade was hired in November 2021, and their romance ended last summer. They also testified that they split travel costs roughly evenly, with Willis often paying expenses or reimbursing Wade in cash.
McAfee clearly found that Willis' relationship with Wade and his employment as lead prosecutor in the case created an appearance of impropriety, and his failure to disqualify Willis and her whole office from the case “is plain legal error requiring reversal,” the defense attorneys wrote in their application.
Given the complexity of the case and the number of defendants, the application says, multiple trials will likely be necessary. Failure to disqualify Willis now could require any verdicts to be overturned, and it would be “neither prudent nor efficient” to risk having to go through “this painful, divisive, and expensive process” multiple times, it says.
Lawyers for Trump and the other defendants had argued that during a speech in mid-January at a historically Black church in Atlanta Willis had inappropriately injected race and religion into the case, prejudicing any future jury pool against the defendants. The appeal application also accuses her of giving untruthful testimony under oath during a hearing last month. It says those actions amount to forensic misconduct that should disqualify her.
In his ruling, McAfee cited a lack of appellate guidance on the issue of disqualifying a prosecutor for forensic misconduct, and the defense lawyers argued the appeals court should take up the appeal to establish such a precedent.
Finally, the defense attorneys argued, it is crucial that prosecutors “remain and appear to be disinterested and impartial” to maintain public faith in the integrity of the judicial system.