Trump, Giuliani, and others appeal decision not to disqualify DA Fani Willis in Georgia

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Former President Donald Trump and eight co-defendants charged with conspiring to commit election fraud in Georgia are continuing their efforts to get Fulton County District Attorney Fani Willis removed from the prosecution. The nine defendants petitioned a state appeals court Friday to hear their appeal of a judge’s ruling allowing Willis to stay on the case despite her affair with a private lawyer she hired to oversee the investigation.

Lawyers for Trump and the co-defendants had requested permission to appeal the ruling by Judge Scott McAfee earlier this month, and the Republican-appointed judge granted their petition for an emergency review.

Trump and the others, including former New York Mayor Rudy Giuliani, must now get a panel of Georgia Court of Appeals judges to agree to hear the case. If they decline, the case moves forward to trial.

No trial date has been set, but Willis has said she wants to get it going well before the Nov. 5 election that will feature Trump in a rematch with President Joe Biden, who defeated him in the state in the 2020 election.

Trump and 14 others are accused of trying to overturn those results in Georgia through various means, including by creating a false slate of electors to replace those representing Biden's electoral win in the Peach State. Willis is prosecuting them under Georgia’s RICO statute, short for the Racketeer Influenced and Corrupt Organization Act, which alleges various conspiracies committed by different people with the common goal of overturning the election.

The lawyers argue in Friday's appeal that McAfee didn't go far enough in his March 15 decision when he forced Willis to essentially fire special prosecutor Nathan Wade or step down herself over a romantic relationship they had. Wade resigned later that day.

Led by Trump defense attorney Steven Sadow, the defense lawyers are now asking the appellate court to throw Willis and the entire Fulton County DA's office off the case entirely, and for the case to be dismissed.

Sadow said in a statement that the appeal echoes previous arguments made by defense lawyers, including that "the indictment should have been dismissed and, at a minimum, DA Willis and her office should have been disqualified from prosecuting the case."

"The Georgia Court of Appeals should grant the application and accept the interlocutory appeal for consideration on the merits," Sadow wrote.

Case's 'importance' requires emergency review

Under Georgia law, defense lawyers were required to ask McAfee to grant a certificate of immediate review allowing them to file an emergency appeal to the appellate court before the trial could get underway.

In that request, they argued that McAfee's decision to allow Willis to stay on the case "is of such importance to the case that immediate review" is warranted. They also noted that McAfee, despite sparing Willis, was sharply critical of her relationship with Wade, and the vacations the two took together.

"An odor of mendacity remains," McAfee also wrote, saying Willis and Wade had severely damaged their credibility while on the witness stand. As a result, he said, "reasonable questions" remained over whether they had "testified untruthfully about the timing of their relationship," which they said began after Wade joined the case.

An 'erroneous' failure to disqualify

In Friday’s appeal, the defense lawyers included numerous arguments as to why the appellate panel of judges should either overturn McAfee’s ruling or throw out the case.

They said McAfee’s failure to disqualify Willis was “erroneous” and a violation of their clients’ due process and that Willis engaged in what is known as “forensic misconduct” by making racially charged comments about the case that could prejudice a jury against the accused.

They also argued that McAfee “erred in determining that DA Willis had not acquired a personal stake in this case through her actual conflicts of interest,” and that the judge also “erred by refusing to disqualify DA Willis for the appearance of a conflict or impropriety.”

Those seeking the appeal also include Trump White House Chief of Staff Mark Meadows and Trump 2020 campaign staffer Michael Roman, who first disclosed Willis' romantic relationship with Wade in a bombshell Jan. 8 motion to disqualify her.

More: An 'odor of mendacity': Fani Willis decision is far from over in Trump election fraud case

Election fraud case to go forward while emergency appeal is considered

Even though a trial date has not been set, McAfee has indicated that he wants to allow the prosecution and defense to prepare for it while the appeal is underway.

"The Court intends to continue addressing the many other unrelated pending pretrial motions, regardless of whether the petition is granted Fulton County Superior Court," McAfee wrote in his decision allowing the emergency appeal.

The Georgia appellate court has 45 days to decide whether to hear the case.

If the appeals court agrees to hear the case, it could potentially disqualify Willis and the entire Fulton County district attorney’s office. That could delay significantly the sweeping election interference prosecution while a new prosecutor or DA’s office is picked to take over the case.

Clark Cunningham, a professor of law and ethics at Georgia State University College of Law, told USA TODAY that there’s a chance the Court of Appeals will not take the case, given what he says is its history of deferring to the judgement of the initial judge.

Either way, he said, whoever loses almost certainly will appeal to the Georgia Supreme Court, making it even less likely that Trump and others will sit before a jury before Election Day on Nov. 5.

Ashleigh Merchant, a lawyer for Roman, agreed, telling Fox News that she and other defense attorneys would almost certainly appeal to the state's highest court if appellate judges refuse to hear their appeal or rule against them.

Merchant said that the appeals court judges could send the disqualification issue back to McAfee and say "you actually made some errors ... and tell him to go ahead and fix it. Or they could say, 'We're not going to decide this,' and then it's going to go up to the Supreme Court."

Either way, Merchant said, "It's not going to be decided quickly. It's going to take at least a couple of months for this to work its way through the system to determine whether or not she actually is disqualified."

For that reason, Merchant said, "I don't see any way that this could happen before the election. I mean, the appellate process takes about six months, once it's initiated, and we're not even there yet. We're still early on in the stages."

This article originally appeared on USA TODAY: Trump, others appeal judge decision not to disqualify DA Fani Willis