Fulton County DA Fani Willis has asked Georgia's highest court to place her back in charge of prosecuting President-elect Donald Trump and his allies after she was officially kicked off the 2020 election interference case.
Last week, Willis filed an appeal asking the state's Supreme Court—known as the court of last resort—to overturn the appeals court's disqualification decision. Willis asserts that failure to reinstate her would "infect" the state's case law for years to come.
BREAKING LEGAL NEWS 🚨🚨
— Phil Holloway ✈️ (@PhilHollowayEsq) January 13, 2025
Fulton DA #FaniWillis asks the Georgia Supreme Court to put her back on her RICO case against @realDonaldTrump and the other defendants pic.twitter.com/U0fYst47Uu
In December, the Georgia Court of Appeals ruled that Willis, along with the rest of her office, could not continue to prosecute the case because of an "appearance of impropriety" she created by benefiting financially from an undisclosed affair with special counsel Nathan Wade, whom she had hired to spearhead the Trump prosecution.
Willis claimed in a petition Wednesday that the appellate court's opinion ruling in Trump's favor was an "overreach" of authority that set a new, "unique" standard for disqualifying a prosecutor and disregarded decades of legal precedent.
"The majority opinion ignored precedent, created uncertainty that is likely to recur, implemented a hair-trigger standard disfavored under Georgia law, and replaced the trial court's discretion with its own," Willis wrote. "The State submits that review is necessary to reverse the majority opinion and clarify the standard for disqualification."
She notes that case precedent says:
— Phil Holloway ✈️ (@PhilHollowayEsq) January 13, 2025
"disqualification as an extraordinary remedy
that should be granted sparingly"
Well, actually the Court of Appeals agreed and said this IS the rare case where disqualification is necessary pic.twitter.com/04AYqW0FlO
According to the court filing, Willis is arguing that the appeals panel was wrong to expel her "based solely upon an appearance of impropriety and absent a finding of an actual conflict of interest or forensic misconduct."
"No Georgia court has ever disqualified a district attorney for the mere appearance of impropriety without the existence of an actual conflict of interest," she said. "And no Georgia court has ever reversed a trial court's order declining to disqualify a prosecutor based solely on an appearance of impropriety."
Moreover, her affair with Wade "had not actually affected the case in any way," Willis wrote. She suggested disqualifying her on that alone "divest[ed] her of her constitutional authority to investigate and prosecute crimes."
Willis further claimed that the 2-1 decision did not contain "any explanation of its reasoning" for finding that a mere appearance of wrongdoing was enough to force her off the case. It's essential for the top court in Georgia's judiciary system to step in "lest the majority's opinion be allowed to linger and infect the body of Georgia case law," Willis wrote.
She says the Court of Appeals got it wrong by making new precedent, as opposed to following established precedent
— Phil Holloway ✈️ (@PhilHollowayEsq) January 13, 2025
(Note: In fact, the Court of Appeals got it right)
Assuming arguendo that an actual conflict of interest or actual impropriety is not required to authorize… pic.twitter.com/NZTBZU5lRr
Whether the Georgia Supreme Court reverses the lower court's ruling depends on if it even takes up the DA's appeal.
A majority of justices must vote to hear her argument. The appellate court's determination still stands if there is no majority vote. However, if granted, the case will be docketed and decided within two terms of court—or about six months. Eight of the nine justices on the state's Supreme Court were appointed to the bench by GOP governors.
If Willis is not reinstalled, jurisdiction rests with a non-partisan prosecutorial agency, called the Prosecuting Attorneys Council of Georgia, which will choose who takes over the Trump case, if it proceeds at all; they could decline to appoint anyone. Nevertheless, the odds are low that a different district attorney or a special prosecutor would be willing to involve themselves in the crumbling case.
Trial court Judge Scott McAfee decided in March 2024 that Willis was allowed to remain so long as Wade resigned, which he did within hours of the ultimatum, in order to remedy an "appearance of impropriety" surrounding the prosecutorial team. Trump appealed, and the Georgia Appeals Court ended up agreeing with the defense, declaring McAfee's resolution insufficient.
Applying the "appearance" standard, the appellate court concluded that McAfee had "erred" in not outright disqualifying Willis as well as Wade. "While we recognize that an appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings," the Dec. 19 ruling read. Removing only Wade "did not cure the already existing appearance of impropriety," the legal body said of McAfee's remedy.
Georgia Attorney General Chris Carr has since urged the state's Supreme Court to reject her last-ditch effort to hold on to the prosecution, the final criminal case facing Trump. Carr said Willis was "rightfully removed" for "creat[ing] her own conflict" of interest. Accordingly, the Georgia Supreme Court should not bother with the prosecutorial misconduct matter, Carr stated. "It's our hope that the DA will now focus taxpayer resources on the successful prosecution of violent criminals in Fulton County," the state's AG added.
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