Trump, Fulton co-defendants appeal judge’s decision keeping DA Fani Willis

‘No prosecutor has ever been so reckless and relentless in pursuit of personal gain’
Fulton County District Attorney Fani Willis looks on during a hearing on the Georgia election interference case on March, 1. (AP File Photo/Alex Slitz, Pool, File)

Credit: AP

Credit: AP

Fulton County District Attorney Fani Willis looks on during a hearing on the Georgia election interference case on March, 1. (AP File Photo/Alex Slitz, Pool, File)

Former President Donald Trump and eight co-defendants in the election interference case on Friday formally appealed a judge’s recent decision to allow Fulton County District Attorney Fani Willis to continue prosecuting the matter.

The defendants say Willis should be disqualified from the case, citing her romantic relationship with special prosecutor Nathan Wade, which they said had given the DA an improper financial interest in the prosecution. In his March 15 decision, Superior Court Judge McAfee allowed Willis to continue — as long as Wade was not involved in the case. Wade resigned the same day.

On Friday, the defendants asked the Georgia Court of Appeals to overturn McAfee’s decision. They argued McAfee erred in failing to disqualify Willis. And they said that error should be resolved now — not after the case has gone to trial.

“It is neither prudent nor efficient to require the courts, the parties or taxpayers to run the significant and avoidable risk of having to go through this painful, divisive and expensive process more than once when an existing structural error can be remedied by this court now,” the defendants’ attorneys argued.

The defendants are also appealing McAfee’s decision not to dismiss the indictment in its entirety.

Defense attorney Ashleigh Merchant testifies before the Senate Special Committee on Investigation at the Georgia State Capitol on Wednesday, March 6, 2024. (Steve Schaefer/steve.schaefer@ajc.com)

Credit: Steve Schaefer /

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Credit: Steve Schaefer /

The DA’s office had no comment on the appeal, which is the latest twist in a drama that began when attorney Ashleigh Merchant filed the first motion to disqualify Willis in January. Merchant, who represents defendant Michael Roman, said Willis hired her boyfriend to oversee the election case, paying his firm hundreds of thousands of dollars. Merchant argued that Willis benefited from the arrangement when Wade paid thousands of dollars for trips to Aruba, Napa Valley and other locales.

In court documents and testimony, Willis and Wade said their romance began months after she hired him and ended last summer. They said they split the costs of their travels roughly equally. And Willis said the relationship did not influence the prosecution of the case.

McAfee ruled the defendants had not proved conclusively that the Willis-Wade relationship posed an actual conflict of interest. But he found the appearance of a conflict could continue to haunt the case. So he gave Willis a choice: Either terminate Wade’s involvement in the case or see her and her entire staff disqualified.

McAfee also rejected the defendants’ argument that Willis should be disqualified for comments she made at an historic Black church in Atlanta in January. In that speech, Willis defended Wade and suggested critics had singled him out because he is Black. The judge found her comments improper, but said they did not rise to the level of forensic misconduct that warranted disqualification.

The defense team said the appellate court should take the case to clarify the standards to which DAs should be held.

“Because the trial court properly found an appearance of impropriety as to both DA Wilis and (special assistant DA) Wade existed, the law requires the disqualification of them both,” the appeal said. “Otherwise, the appearance of impropriety is not cured, and neither the public nor the accused can have the required confidence in the impartiality and fairness of the criminal process.”

The defense agreed with McAfee that there is scant guidance from the appellate courts for trial judges to follow in a case such as this but said that was “hardly surprising.”

“No prosecutor has ever been so reckless and relentless in pursuit of personal gain that she provided endless pretrial interviews to the media, granted unprecedented pretrial access to the authors of a book or attempted to distract from her disqualifying, unethical behavior by publicly and wrongfully castigating defendants as racists for exposing her, and proclaiming God has anointed her and was on her side,” the appeal said.

“If this outrageous, unlawful and unethical conduct does not satisfy that standard, then forensic misconduct does not, in fact, exist in Georgia,” it concluded.

The Court of Appeals has 45 days to decide whether to accept the case. McAfee has said he plans to continue other work on the case in the meantime. He held a hearing on several defense motions Thursday.