District Attorney Fani Willis of Fulton County, Georgia, has been stripped of her racketeering case against President-elect Trump and 18 of his aides and associates. The stunning ruling from a state appeals court, though, isn’t the absolute end of her tenure helming the prosecution — yet.
Georgia’s supreme court could yet reinstate Ms. Willis — if it decides to hear the case. Even if it does not, the indictments she secured have not been wiped away, and in time, a special prosecutor could be appointed to review them and decide whether to pursue the same prosecutorial path.
The disqualification ruling from the Georgia court of appeals was a defeat for Ms. Willis, who has charged Trump with working to challenge the results of the 2020 election in the Peach State, where he narrowly lost. The review court calls this “the rare case in which disqualification is mandated and no other remedy will suffice.”
Ms. Willis, though, can appeal that ruling to the Georgia supreme court, and ask the state’s highest court to overturn the ruling that she has “no authority to proceed” in the racketeering case. Trump’s lawyer, Steven Sadow, reckons in a statement emailed to the Sun that the decision “puts an end to a politically motivated persecution of the next President of the United States.”
Yet the ruling disqualifying Ms. Willis for her secret romance with her handpicked special prosecutor, Nathan Wade, was joined by two judges, with one, Benjamin Land, dissenting. The dissent of Judge Land — who was appointed by a Republican governor, Brian Kemp, and won election to a full term in May — could provide a blueprint for a Supreme Court reversal of the purge of Ms. Willis, along with her entire office, from the prosecution.
Judge Land writes that he is “particularly troubled by the fact that the majority has taken what has long been a discretionary decision for the trial court to make and converted it to something else entirely.” The jurist calls on his fellow appellate judges to “resist the temptation” to substitute their own judgement for that of trial judges, who encounter evidence firsthand.
Judge Land warns that doing otherwise “violates well-established precedent, threatens the discretion given to trial courts, and blurs the distinction between our respective courts.” In language that Ms. Willis could find useful on appeal, he writes that “for at least the last 43 years, our appellate courts have held that an appearance of impropriety … provides no basis for the reversal of a trial court’s denial of a motion to disqualify.”
That appearance — owed to Ms. Willis’s romance with Mr. Wade, to whom her office paid more than $600,000 and with whom she took numerous vacations — is the basis on which Judge Land’s two colleagues disqualified the district attorney. Those two, Trenton Brown and David Markle, acknowledge that “this is the rare case in which disqualification is mandated.” They twice repeat that their judgement is a “rare” one, meaning it has little precedential ballast.
The court of appeals, though, did not go so far as to dismiss Ms. Willis’s charges. The judges wrote that they could not “conclude that the record also supports the imposition of the extreme sanction of dismissal of the indictment.” If Ms. Willis never regains her case, it will be up to the executive director of the Prosecuting Attorneys’ Council of the State of Georgia, Pete Skandalakis, a Republican, to name an attorney to pick up the baton. This process could take years to reach a conclusion.
That new prosecutor would have discretion to press forward with the case, or drop it. He could also elect to eschew prosecuting Trump — who will be a sitting president — but not relent with respect to his co-defendants, who include Mayor Giuliani and Congressman Mark Meadows, Trump’s third White House chief of staff.
A new prosecutor could also be less enamored than is Ms. Willis of creatively deployed racketeering charges, for which she has displayed a persistent fondness, even as her success at scoring convictions has been mixed. Most recently, two members of the YSL gang were acquitted after the longest trial in Georgia’s history.
Under Georgia law the state’s highest court has discretion to hear an appeal — or refuse to consider it. If the state supreme court denies Ms. Willis’s inevitable request for review, her time atop the case she charged will finally be over.