Trump Appeals Decision Not to Disqualify DA Fani Willis

Fulton County District Attorney Fani Willis (C), with outside counsel she hired on the racketeering case against former President Trump, RICO expert John Floyd (L) and Nathan Wade (R). Joe Raedle/Getty Images

Former President Donald Trump has filed an appeal against the decision not to disqualify Fulton County District Attorney Fani Willis, in the Georgia Court of Appeals on June 24. The district attorney has 20 days to file a response.

“The trial court failed to accurately apply the forensic misconduct standard and thereby abused its discretion,” reads the 64-page appeal brief made public by the former president’s attorney, Steve Sadow, who argues that the trial court erred in several ways. Eight co-defendants joined the appeal.

Last August, former President Trump and 18 others were charged under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act in a 41-count indictment, for their actions in challenging the 2020 election results. Four have since accepted plea bargains.

In January, codefendant Michael Roman, a former GOP strategist, filed a motion to disqualify Ms. Willis based on an affair she had with the outside attorney she hired to lead the case and on alleged financial misconduct. Other defendants joined, alleging prejudicial statements that rose to the level of prosecutorial misconduct.

Fulton County Superior Court Judge Scott McAfee ruled that while there was an appearance of impropriety, there was no actual conflict of interest. As a remedy, the judge determined that Ms. Willis’s disqualification was not required if special prosecutor Nathan Wade was removed from the case, and Mr. Wade resigned the same day.

The judge also criticized Ms. Willis’s conduct and extrajudicial statements, but stopped short of requiring her removal.

Defendants Argue Trial Court Erred

Mr. Roman has also appealed, arguing the trial court erred in the question of conflict of interest versus an appearance of impropriety.

Codefendant David Shafer, a former Georgia GOP chair, argued the trial court was wrong in determining the standard for forensic misconduct and the appearance of impropriety, and the appropriate remedies.

Codefendant Robert Cheeley, a former Trump campaign attorney, argued the trial court erred in failing to determine a conflict of interest and disqualifying the district attorney as a remedy to its determination of appearance of impropriety.

Codefendants Mark Meadows, Cathy Latham, Rudy Giuliani, Jeffrey Clark, and Harrison Floyd made similar arguments, and the defendants have adopted each others’ arguments in their appeals briefs.

Former President Trump’s appeal focuses on a speech Ms. Willis made in January, in which she suggested the defendants had racist motivations in seeking her disqualification.

Forensic Misconduct Standard

Former President Trump argued that the determinations made by Judge McAfee were enough to warrant disqualification, saying he ordered the wrong remedy.

Judge McAfee had found Ms. Willis gave a “legally improper” speech about the defendants and that her actions resulted in a “significant appearance of impropriety,” but his order was not directed toward Ms. Willis herself.

“Should a prosecutor be disqualified for intentionally and repeatedly violating ethical and professional canons to prejudice defendants for personal or political gain? Yes. Is disqualification necessary when a prosecutor testifies falsely, conceals misconduct, and creates ‘an odor of mendacity’ that results in a ’significant appearance of impropriety?‘ Undoubtedly so,’” the brief reads.

“If this prosecutor deflects attention from her misconduct by claiming on national television that the defendants are dishonest racists for bringing the truthful accusations to light, could anyone have confidence in the impartiality of the prosecutor’s actions? Absolutely not.”

At the time of Mr. Roman’s motion for disqualification, the affair between Ms. Willis and Mr. Wade had been secret. In Ms. Willis’s broadcast speech at a large Atlanta church, Ms. Willis did not reveal whether the allegation of an affair was true. She said that people were playing the “race card” by questioning her relationship with the black man she hired, but not the white woman or white man she hired as outside counsel on the case. Later during testimony, Ms. Willis acknowledged there was indeed a romantic relationship.

Ms. Willis did not name the defendants in the speech, but Judge McAfee said it was the logical conclusion that she was referring to defendants in the election case.

Attorneys for former President Trump argued that Ms. Willis has taken advantage of her position and authority as district attorney to “poison the well” for defendants, and pointed to interviews she has given this year showing a lack of remorse for her extrajudicial statements. Ms. Willis has told reporters that she is “not embarrassed by anything that I’ve done.”

They are arguing that prejudicing the public against the defendants violates their due process rights, and that Ms. Willis’s conduct contradicts court mandates to ensure fairness to an extent where, quoting precedent, “justice must satisfy the appearance of justice.”

Defense attorneys also argue the proper remedy is dismissal of the indictment, as Mr. Wade’s participation, which the trial court ruled was improper, began with the grand jury proceedings that led to the indictment.