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By Katherine Fung
Senior Writer
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Former President Donald Trump and his allies are likely to struggle if they appeal last week's ruling over the disqualification of Fulton County District Attorney Fani Willis, legal experts have said.
Judge Scott McAfee, who is presiding over the Georgia election interference case against Trump and 18 co-defendants, ruled Friday that there was no evidence of a conflict of interest warranting the removal of Willis from the case, handing a win to the district attorney. As long as special prosecutor Nathan Wade agreed to step down from the case, which he did hours after the ruling, Willis could remain on the prosecution.
But the defense is not putting the months-long dispute over Willis' possible disqualification past them. While the order is not directly appealable at this time, Trump and his co-defendants could still seek a certificate of immediate review from McAfee within 10 days, and apply for an interlocutory appeal with the Georgia Court of Appeals.
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On Sunday, Trump lawyer Steve Sadow indicated on X, formerly Twitter, that he would be willing to do so, saying that the next step would be to ask the court for a pretrial appeal. But even if McAfee were to grant a certificate for immediate review of his Friday decision, the Georgia Court of Appeals could still decline to hear the case. And they would be likely to do just that, attorney and Georgia State University College of Law professor Anthony Michael Kreis told Newsweek.
When applying for review from the Court of Appeals, Trump and his co-defendants will have to show that the disqualification issue is dispositive of the election interference case in its entirety, that the decision was wrongly decided and will negatively impact the defense, or that there is a pressing need to establish a precedent on prosecutorial misconduct.
"It'll be very hard for the defendants to demonstrate that the factors that favor review are present here because Judge McAfee's ruling exhaustively explained why the defendants were not prejudiced by Wade and Willis' relationship and, applying longstanding precedent, determined there is no actual conflict of interest and provided a curative remedy to remove the appearance of wrongdoing," Kreis said. "There is very little for the court to review."
Atlanta-based defense attorney Noah Pines told Newsweek that he didn't think neither McAfee nor the Court of Appeals would grant the certificate nor accept the application based on the requirements. However, Pines said that if Trump and his co-defendants end up being convicted of the criminal charges in the case, the disqualification issue will likely be raised on direct appeal of the verdict.
On X, Kreis agreed with another user, who said they believed that while there was a 60 percent chance McAfee would grant the certificate, there would only be a 20 percent chance the Court of Appeals would take it up. Kreis said it would be "dicey" for the Court of Appeals to use the Trump case as "a vehicle for tinkering with/refining standards for disqualification."
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"We have a very professional, very legal rule oriented Court of Appeals," the other X user tweeted. "If they grant, it's because they see a broad legal issue that needs to be resolved for the state of the law and it'll have nothing to do with Trump being involved."
The user wrote, "While the things at issue are fascinating and the law isn't real developed, there are enough factors unique or rare in this case (special prosecutor, pre-trial, credibility determinations, etc.) that I'm skeptical it'll make their cut."
Should McAfee, however, grant the certificate and allow Trump and the other co-defendants to immediately appeal before the case goes to trial, it is likely to cause a substantial delay to the case. Prosecutors are pushing to go to trial and seek a verdict before the 2024 election, in which Trump has been named the presumptive Republican nominee.
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