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Court of Appeals agrees to consider DA removal in Trump Georgia election case

Former U.S. President Donald Trump walks to speak to the media with attorney Todd Blanche at the end of the day during his trial for allegedly covering up hush money payments at Manhattan Criminal Court on May 7, 2024, in New York City. Trump has been charged with 34 counts of falsifying business records, which prosecutors say was an effort to hide a potential sex scandal, both before and after the 2016 presidential election. Trump is the first former U.S. president to face trial on criminal charges. (Sarah Yenesel/Pool/Getty Images North America/TNS)
By Bill Rankin, Tamar Hallerman and David Wickert Atlanta Journal-Constitution Atlanta Journal-Constitution

ATLANTA – The Georgia Court of Appeals on Wednesday decided to hear an appeal of a judge’s ruling allowing District Attorney Fani Willis to remain at the helm of Fulton County’s election interference case against former President Donald Trump.

The court’s decision almost certainly means a significant delay of a trial for Trump and his 14 co-defendants and signals that Willis’ leadership role isn’t guaranteed. It is unclear how long the appeals court will take to decide the issue, but they are not known for moving swiftly.

“There’s no way this case gets to trial this year,” said Atlanta defense attorney Andrew Fleischman, who is closing following the case. “I would expect the appeals court to issue its opinion some time next year.”

On March 29, Superior Court Judge Scott McAfee issued a “certificate of immediate review,” which allowed the defendants to appeal his ruling to the Georgia Court of Appeals before a trial begins.

Under Appeals Court rules, such a pretrial – or interlocutory – appeal is typically assigned to a three-judge screening panel. And all it takes is for one of those judges to decide whether the court accepts the appeal. The court’s order one-page order did not divulge which judge voted to grant the application.

In his order granting the pretrial review, McAfee said he will continue working on the case, resolving pending motions, while the appeals court takes up the removal issue.

Eight defendants, including Trump, requested permission to appeal a few days after McAfee mostly denied a motion to disqualify Willis due to her romantic relationship with then-special prosecutor Nathan Wade.

While McAfee ruled that Willis did not have an actual conflict of interest that warranted her removal, he said there was an appearance of a conflict that required her to make a choice. Willis could either recuse herself and her office from the case or cut ties with Wade, McAfee said. Within hours, Wade had tendered his resignation.

The Fulton DA’s office declined to comment.

Trump’s lead Atlanta lawyer, Steve Sadow, applauded the decision.

“President Trump looks forward to presenting interlocutory arguments to the Georgia Court of Appeals as to why the case should be dismissed and Fulton County DA Willis should be disqualified for her misconduct in this unjustified, unwarranted political persecution,” Sadow said.

Fleischman said he understood why the appellate court agreed to decide the disqualification challenge.

“This issue is important,” he said. “You’re prosecuting the former president of the United States. This is obviously an area of the law that needs clarification. … It’s so important to the outcome of the case.”

The Fulton case is not the only criminal proceeding against Trump that is delayed.

U.S. District Court Judge Aileen Cannon on Tuesday canceled the May 20 trial date that had been set for Trump’s classified documents trial in Florida. Her move indefinitely postponed the federal case, brought by Justice Department special counsel Jack Smith, and substantially raised the likelihood that it wouldn’t be tried before Election Day.

Smith’s other case against Trump, which focuses on the Republican’s attempts to cling to power in the aftermath of the 2020 election, has also been paused as the U.S. Supreme Court decides whether presidents should be immune for their actions while in office. Justices aren’t expected to announce their decision on the matter until late June, and based on their comments during last month’s oral arguments could instruct a lower court to take other action before Smith could move forward.

A third criminal trial, involving alleged hush money payments, is underway in Manhattan.

Separately on Wednesday, the Court of Appeals rejected an appeal from Harrison Floyd, one of Trump’s co-defendants in the Fulton election interference case.

Floyd has argued the case should be dismissed because the State Election Board – not Willis’ office – has exclusive authority to initiate and refer criminal investigations concerning elections. Superior Court Judge Scott McAfee rejected that argument in January and again in March.

The exact timeline for when the court would take up the disqualification appeal is unclear.

Fulton Superior Court must first prepare the record from the first round of the removal fight and send it to the appeals court. Only then can the case be docketed and a panel of three judges be assigned via the court’s computer system, according to Christina Cooley Smith, deputy court administrator for the Court of Appeals.

It is then up to the judges to decide when they would like to hear oral argument, said Smith, but the matter must be decided within two terms of court. That means that if it’s docketed before July, it would need to be heard and decided before mid-March .