Steve Sadow, attorney to former President Donald Trump, filed on March 18 a request for review of Fulton County Superior Court Judge Scott McAfee’s decision to allow Fulton County District Attorney Fani Willis to remain on the high-profile Georgia election case.
Co-defendants Rudy Giuliani, Mark Meadows, Robert Cheeley, Michael Roman, David Shafer, Harrison Floyd, and Cathleen Latham, who had joined the initial motion for disqualification, joined the motion for a certificate of immediate review.
Judge McAfee’s March 15 order had found there was an appearance of impropriety but that a conflict of interest hadn’t been proven. He found that disqualification didn’t need to be the “cure” to an appearance of impropriety, instead ordering special counsel Nathan Wade to be taken off the case.
Mr. Wade resigned hours after the morning order was issued.
Mr. Wade, an outside attorney contracted by Ms. Willis, had acknowledged a romantic relationship with Ms. Willis but testified that it had ended before the election case indictment was handed up.
Judge McAfee noted that Mr. Wade’s inconsistent answers under oath in his recent divorce case showed a willingness to “conceal” his relationship with Ms. Willis, and had opined that an “odor of mendacity” lingered on the prosecution team with Ms. Willis’s and Mr. Wade’s testimonies in his court.
Given the seriousness of the appearance issue as described by the judge, the defendants argued that the removal of Mr. Wade wasn’t sufficient.
Both the judge and defendants acknowledged that they were in novel legal territory.
“Given the lack of guidance from the appellate courts on key issues, and the fact that any errors in the March 15 Order could be structural errors that would necessitate retrial(s), the grant of a certificate of immediate review is both prudent and warrant,” defendants wrote in the new motion.
Judge McAfee has a 10-day window to decide whether he will allow review of his disqualification decision. Although he hadn’t mentioned review in the March 15 order, he had indicated it was likely when he issued an order quashing six charges from the 41-count indictment just days before that.
If the judge allows a review, pretrial proceedings could be halted for up to 45 days while an appeals court decides whether to take the case.
Defendants argue that this review should happen now, at the pretrial stage, because if review were to be delayed and “ultimately reversed on appeal such reversal would likely require the retrial of every convicted defendant without any additional showing of error or prejudice.”
Given that the racketeering case still has 15 defendants (four have accepted plea bargains) and is expected to run about six months, counsel argued that no one “should run an unnecessary risk of having to go through that process more than once.”
Forensic Misconduct Question
Although Judge McAfee ruled that the defendants hadn’t proven conflict of interest, he specified that a speech that Ms. Willis gave was “legally improper.”The speech the district attorney gave at the Big Bethel AME Church on Jan. 14 was the first time that she had addressed allegations that she had an affair with Mr. Wade, who was married at the time and has just recently settled a divorce. While she neither confirmed nor denied a relationship, she cast “racial aspersions” on those alleging that she did, the judge found, noting that this could have been grounds for the defendants to bring a motion for a gag order.
Mr. Sadow, who had argued that this speech was improper when joining the original motion to disqualify, argued that the appeals court may find this qualifies as forensic misconduct, and the open question merits review.
“At a minimum, the factual findings of the Court and the lack of appellate guidance from the Georgia courts on the issue weigh heavily in favor of immediate appellate review, especially given that the failure to disqualify a prosecutor who should be disqualified is a structural error that could necessitate a retrial without any additional showing of prejudice,” the motion reads.
“Seeking clear direction from the appellate courts on these critical issues at this pretrial juncture is a compelling and immediate interest.”
Judge McAfee had found case law on the standard for disqualification lacking, and he opined that an appearance of impropriety didn’t result in disqualification if a less “drastic remedy” was available.
The defendants disagreed; they argued that either actual conflict of interest or appearance of impropriety alone are enough, and that standard has been met in the case.
