The judge whose ruling allowed Fani Willis to stay on the Trump case has granted the defense a certificate of immediate review, permitting former President Donald Trump and eight Trump co-defendants to seek an appeal of his non-disqualification decision.
BREAKING: 🚨🚨
— Phil Holloway ✈️ (@PhilHollowayEsq) March 20, 2024
Judge grants “certificate of immediate review” in the #FaniWillis disqualification motion
This means the Court of Appeals has to also approve, but it’s likely to be allowed
The issue is too important pic.twitter.com/Ot6DQ21DBM
Judge Scott McAfee ruled Friday that the Fulton County district attorney can continue prosecuting the Trump case on one condition: her lover, Nathan Wade, withdraws. If not, she must step aside, and the prosecution as a whole would be reassigned.
"[A]n outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences. As long as Wade remains on the case, this unnecessary perception will persist," McAfee wrote.
McAfee ordered that the "significant appearance of impropriety that infects the current structure of the prosecution team" "must be removed" through the state's selection of one of the two aforementioned options; Wade goes or Willis is kicked off the case.
Otherwise, the prosecution of this case could not proceed until then, McAfee stipulated.
Within hours, Wade resigned, resolving the ultimatum and, thereby, satisfying McAfee's court order.
On Monday, the defense counsel representing Trump and several of his co-defendants jointly filed a motion requesting that McAfee issue a certificate of immediate review of his order denying the case's dismissal and the DA's disqualification.
The ruling is "ripe for pretrial appellate review," Trump's defense attorney Steve Sadow remarked in a press statement.
Statement of Steve Sadow, lead defense counsel for President Trump in the Fulton County, GA case:
— Steve Sadow (@stevesadow) March 18, 2024
“President Trump and seven defendants have jointly filed a motion requesting the Court to grant a certificate of immediate review of its Order denying dismissal of the case and… pic.twitter.com/GrXIWQsg9B
Upon reviewing the defense's joint motion, McAfee found that Friday's ruling "is of such importance to the case that immediate review should be had," pursuant to Georgia law. Accordingly, the motion is granted, McAfee wrote in a court filing Wednesday.
"The challenged order is not one of final judgment, and the State has informed the Court that it has complied with the order’s demands," McAfee said of Friday's ruling, adding that the court "intends to continue addressing" many of the other pending pre-trial motions "regardless of whether the petition is granted within 45 days of filing" and "even if any subsequent appeal is expedited by the appellate court." This means the trial court proceedings are not automatically stayed. As McAfee indicated, he doesn't intend to put the pre-trial proceedings on hold and wants to address any outstanding motions in the meantime.
Now, the defense has 10 days from the certificate's date to file an application for appeal at the appellate level. Then, the matter will head to the Georgia Court of Appeals. However, the appellate court could still decline to hear the Trump team's plea.
But, if the appeals court does take the case, it could direct McAfee to pause proceedings pending its ruling.
As Lawfare's Anna Bower explains: The defense bears the burden of persuading the appellate court to take up the appeal.
Rule 30 of the Georgia Court of Appeals provides a list of factors, under burden of proof, for the court to consider when deciding whether to grant an application for interlocutory appeal: 1) The issue "appears to be dispositive of the case"; or 2) The order "appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party until entry of final judgment, in which case the appeal will be expedited"; or 3) "The establishment of precedent is desirable."
The defendants bear the burden of persuading the Georgia Court of Appeals to consider their appeal.
— Anna Bower (@AnnaBower) March 20, 2024
Here are the factors the Court of Appeals will consider when determining whether to take up the appeal: pic.twitter.com/VOfnuiktc5
"This is highly significant," Sadow reacted to the certificate's issuance in a press statement shared with Townhall. "The defense is optimistic that appellate review will lead to the case being dismissed and the DA being disqualified," Trump's attorney added.
Sadow took a victory lap lambasting the skeptics who doubted McAfee would issue the certificate: "So much for the so-called 'expert' naysayers who said Judge McAfee would not grant the certificate. YOU KNOW WHO YOU ARE!!!!" Sadow posted.
From the USA Today article by Josh Meyer - quote from Chris Timmons — "I doubt McAfee is issuing the certificate," said Chris Timmons, a former Georgia state prosecutor and RICO and jury trial expert. "If you look in the order dismissing the six counts, he put in a footnote that…
— Steve Sadow (@stevesadow) March 20, 2024
Friday's ruling was based on what standard of ethics McAfee decided to apply in the matter. During final arguments, the prosecution and the defense argued over how he should determine what constitutes a conflict of interest. So, he had to choose whether "an appearance" of a conflict was enough grounds for disqualification or decide that an "actual" conflict of interest arose.
McAfee found that the evidence is "legally insufficient to support a finding of an actual conflict of interest" and that the co-defendants "failed to meet their burden of proving that the District Attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor." However, the court's inquiry did not end there.
The Fulton County Superior Court judge declared that the prosecution is "encumbered by an appearance of impropriety."
Even if the affair began after Wade's appointment in November 2021, McAfee noted, Willis "chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the District Attorney benefited [...] from a contract whose award lay solely within her purview and policing."
But, the DA's disqualification is not "necessary," McAfee said, "when a less drastic and sufficiently remedial option is available."
"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 stressed. "Rather, it is the undersigned's opinion that Georgia law does not permit the finding of an actual conflict for simply making bad choices—even repeatedly..."
Other forums or authorities, such as the General Assembly, the State Ethics Commission, the state bar, the Fulton County Board of Commissioners, or even the electorate, "may offer feedback on any unanswered questions that linger," McAfee countered.
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