Fani Willis disqualified as DA in Donald Trump's election racketeering case

A divided Georgia Court of Appeals disqualified the prosecutor in President-elect Donald Trump's state election racketeering case on Thursday, ruling Fulton County District Attorney Fani Willis carried the appearance of impropriety in her decisions about who to prosecute and what charges to bring.

Willis had acknowledged a romantic relationship with a special counsel she hired onto the case, Nathan Wade. After fiery hearings earlier this year, Fulton County Superior Judge Scott McAfee ruled Willis showed "a tremendous lapse in judgment" but that she could remain on the case.

But Trump and eight other defendants in the sprawling prosecution appealed that decision.

The appeals panel voted 2-1 to disqualify Willis, throwing the continuation of the case into doubt.

"After carefully considering the trial court’s findings in its order, we conclude that it erred by failing to disqualify DA Willis and her office," Judge Trenton Brown wrote for the court, rulng that McAfee's review "did nothing to address the appearance of impropriety that existed at times when DA Willis was exercising her broad pretrial discretion about who to prosecute and what charges to bring."

Brown was joined by Judge Todd Markle. Judge Benjamin Land dissented.

Steve Sadow, Trump’s lawyer in Georgia, called the decision “well-reasoned” and said it should end the case.

“The Court highlighted that Willis’ misconduct created an ‘odor of mendacity’ and an appearance of impropriety that could only be cured by the disqualification of her and her entire office,” Sadow said. “This decision puts an end to a politically motivated persecution of the next President of the United States.”

A lawyer for another defendant, Michael Roman, also welcomed the decision.

"We are very pleased the Court of Appeals agreed with Mr. Roman and the other defendants that Ms. Willis should not have been allowed to prosecute this case," said Ashleigh Merchant, who was the first to argue Willis' removal.

Willis's office didn't immediately respond to a request for comment.

Will Trump go on trial in Georgia?

The decision throws into uncertainty when any trial could be held with a new prosecution team for the 15 defendants who have not already pleaded guilty. The appeals court refused to dismiss the indictment.

Antony Michael Kreis, a law professor at Georgia State University who has closely followed the case, said the state Supreme Court could still overturn the appeals ruling. But if it stands, Kreis said the case would be turned over to another district attorney.

“The two big questions are whether the Supreme Court of Georgia steps in, and then what happens if the disqualification order stands,” Kreis said.

“The disqualification of Fani Willis is entirely unfounded, but there is a silver lining ? the indictment against Trump still stands," said Norm Eisen, a legal expert who worked for the House committee that investigated Trump's first impeachment. "It should be pursued vigorously. As we’ve seen in the New York case, Trump is not immune, and prosecutors must continue to hold him accountable.”

More: NY judge upholds Trump hush money conviction despite Supreme Court's immunity ruling

But Clark Cunningham, another law professor at Georgia State, said if the decision stands, Peter Skandalakis, director of the Prosecuting Attorneys’ Council of Georgia, would reassign it to another prosecutor.

Cunningham said Skandalakis could assign the case to himself and eventually dismiss the charges.

“However, as a first step, he would be likely to decide that all charges against Trump must simply suspended during his second term as president,” Cunningham said.

District attorneys in nearby Cobb or DeKalb counties would be most likely to accept the Trump election case if Willis' disqualification is upheld, Kreis told USA TODAY, expressing reservations at the prospect of Skandalakis dismissing the charges.

"I am not supremely confident it’ll get reassigned, but I think there is a strong argument that an unelected attorney should not have the power to thwart the decision of a Fulton County grand jury to demand a prosecution," he said. "It’s a sticky situation.”

Sadow contends the charges against Trump must be dropped because of his imminent return to the White House.

More: Federal judge dismisses Jan. 6 case against Donald Trump at request of special counsel Jack Smith

Federal judges have dismissed two indictments against Trump: one for alleged election interference and one for alleged mishandling of classified documents after leaving the White House. Prosecutors asked to dismiss the federal election case and dropped an appeal in the documents case because of longstanding Department of Justice policy against trying a sitting president.

McAfee had postponed scheduling a trial on the Georgia charges while awaiting the appeals ruling. Replacing Willis is expected to significantly delay a trial for any defendants prosecuted.

Trump and 18 co-defendants were indicted on charges they tried to steal the 2020 election. Four defendants have pleaded guilty, but Trump and the remaining defendants have pleaded not guilty.

Trump is charged with the overall racketeering conspiracy and several charges dealing with an alleged conspiracy to replace presidential electors for President Joe Biden, who won Georgia in 2020, with Trump supporters.

Other defendants who also sought to remove Willis include Trump's former campaign lawyer, Rudy Giuliani; his former White House chief of staff, Mark Meadows; and a former assistant attorney general, Jeffrey Clark.

Trump and the others alleged that Willis benefited from luxury vacations with Wade after she hired him to help with the case.

Willis and Wade traveled together four times that were documented, the appeals court noted, including to Aruba and Belize; on a cruise from Miami; and to California's Napa Valley. The total value of their travel together was up to $15,000, the appeals court wrote.

Willis and Wade each testified at a contentious hearing that she had reimbursed him for her share of the travel, although she said she'd paid in cash and couldn’t document the payments.

More: Trump lost on immunity. What's next for his New York hush money conviction?

The appeals court found that Willis "was not financially destitute" when the trips occurred and that the defendants had provided no proof the financial arrangements "created an incentive to prolong the case."

"Indeed, the record is quite to the contrary," the appeals court said. "Before the relationship came to light, the State requested that trial begin less than six months after indictment."

McAfee’s remedy was for Wade to resign from the case but to leave Willis in charge of it.

But the appeals court found the appearance of impropriety would continue throughout the trial and that nothing short of Willis's removal would "restore public confidence in the integrity of these proceedings."

"While this is the rare case in which DA Willis and her office must be disqualified due to a significant appearance of impropriety, we cannot conclude that the record also supports the imposition of the extreme sanction of dismissal of the indictment under the appropriate standard," the court ruled.

Judge Land wrote in this dissent that “the law does not support the result reached by the majority.”  Land wrote that McAfee had “broad discretion to impose a remedy that fits the situation.”

“Here, the trial court expressly found that appellants failed to show that the district attorney had an actual conflict of interest, failed to show that she received any material financial benefit as a result of her relationship with Nathan Wade, failed to show that she had a personal stake in the conviction of any defendant, and failed to show that their relationship, including their financial arrangements, had any impact on the case,” Land wrote.

(This is a developing story. Check back for updates.)

This article originally appeared on USA TODAY: Fani Willis disqualified as DA in Trump's election racketeering case