In a monumental development for former President Donald Trump‘s Georgia election interference indictment, a judge ruled Fulton County District Attorney Fani Willis can remain on the case, teeing up a new chapter as prosecutors and defense attorneys prepare their next moves.
Superior Court Judge Scott McAfee wrote in his order Friday that either Willis and her office or her appointed special prosecutor, Nathan Wade, would have to leave the case after finding that a previously undisclosed romantic relationship with Wade resulted in an “appearance of impropriety.”
Wade submitted his resignation letter on Friday, saying in part that he hoped it would help “move this case forward as quickly as possible.” Willis submitted her own letter acknowledging Wade’s departure and commending his work on the case.
If Willis had stepped aside, the Prosecuting Attorney’s Council of Georgia would have begun a search for a new lead prosecutor to take on the indictment against Trump and 14 others in the sprawling racketeering indictment, which may have doomed any chances of the trial happening before November. Her case was also dealt a slight setback this week after McAfee removed six charges in the 41-count indictment due to a lack of sufficient detail.
Willis has called for a trial in the case to begin by August, though McAfee has yet to decide if the trial could begin in the months before the 2024 presidential election as Trump, the prospective Republican nominee to take on President Joe Biden, seeks another term in the Oval Office.
Here’s how McAfee came to his conclusion and what to expect as the case moves ahead:
Judge scolds prosecutors for ‘tremendous lapse in judgment’
“This finding is by no means an indication that the Court condones this tremendous lapse in judgment or the unprofessional manner of the District Attorney’s testimony during the evidentiary hearing,” McAfee wrote, clarifying that Georgia law does not allow the finding of an actual conflict for simply makes “bad choices.”
“However, an odor of mendacity remains,” he wrote in a highly critical rebuke of Willis and Wade’s conduct.
Throughout weeks of hearings, the point of contention became not the relationship itself but whether Willis benefited from appointing Wade to handle the case.
Willis claimed she split vacation expenses roughly evenly by reimbursing Wade with cash when the pair went on trips together throughout the course of his employment by the county. But because of a lack of evidence to verify or contradict Willis’s claim, McAfee said the defense hadn’t met its burden to disprove her testimony.
The judge did note there were “reasonable questions” about Willis’s and Wade’s truthfulness when they testified under penalty of perjury.
Trial attorney Ted Spaulding told the Washington Examiner McAfee’s decision was “well reasoned” given his deference to Georgia’s law, noting that her failure to disclose the relationship between Wade when she brought the charges “just optically showed the appearance of general impropriety.”
“The judge is right that it still generally infects the case, and therefore, his punishment of either Willis or Wade needing to step down makes very logical sense,” Spaulding said.
Can Trump and others appeal?
Trump and his co-defendants will likely seek to fight the judge’s decision going forward, though not by a typical appeals process. Defense attorneys will likely ask McAfee to approve a “certificate of immediate review,” which would have a similar effect.
Steve Sadow, a lawyer for Trump, suggested in a statement Friday that he would seek such a review of McAfee’s decision.
“While respecting the Court’s decision, we believe that the Court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade,” Sadow said. “We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place.”
McAfee has shown a willingness to grant such requests and did so this week when he ordered the dismissal of “Counts 2, 5, 6, 23, 28, and 38” of the indictment, which included allegations that Trump and some co-defendants attempted to make Georgia officials violate their oaths of office. The judge said he would “likely grant” such a request if Willis’s office sought to challenge his ruling.
But the judge may have signaled a possible reluctance to grant an appeals court review of his decision on page 14 of the order, which stated a “finding of an appearance of impropriety on the part of the District Attorney herself, in contrast to an actual conflict, [would not] necessarily result in the disqualification of the entire Fulton County District Attorney’s Office.”
Anthony Michael Kreis, a law professor at Georgia State University, said he thought the ruling was “exceedingly unlikely to be disturbed on appeal.”
“Willis suffered a drubbing on her ethics and professionalism but ultimately emerged with a massive win.”
Both sides dealt a blow from the decision
McAfee’s decision marked a substantial victory for Willis, whose legacy and reputation was on the line after a January motion from co-defendant Mike Roman, a conservative operative and former Trump staffer, threatened to derail her historic indictment of the former president and his allies.
Defense attorneys on the case also expressed disappointment in the decision, signaling they would attempt to appeal the judge’s order. Legal commentators suggested the judge held back from disqualifying her for a “political reason,” such as Andy McCarthy, a former federal prosecutor and conservative legal analyst.
“McAfee acknowledged that, even if Wade were recused, there would still be lingering questions about Willis’s trustworthiness. Well, yes, that is why she should be disqualified,” McCarthy wrote for the National Review, adding, “Her continued participation projects the appearance of impropriety that persists in staining the proceedings.”
Former federal prosecutor Neama Rahmani told the Washington Examiner in an email that the “biggest bright spot for the prosecution is that keeping Willis’ office on the case helps keep the trial on track to start before the general election.”
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However, Rahmani stressed that courtroom “circus” from weeks of removal hearings could be a stain that won’t wear out as the case proceeds.
“This circus has been an embarrassment to the Fulton County District Attorney’s Office, and the sordid details of her relationship with Wade will cast a cloud over these proceedings,” Rahmani added.
