What’s next in the Fani Willis disqualification case

Upcoming decision could roil Fulton County prosecution of Donald Trump

Six attorneys - five for the defense and one for the prosecution - summed up their arguments on Friday about whether Fulton County District Attorney Fani Willis and her office should be — or should not be — disqualified from prosecuting Donald Trump and his 14 remaining codefendants.

The defense said that Willis benefitted financially from an improper romantic relationship with special prosecutor Nathan Wade, creating a conflict of interest that has tainted the sweeping racketeering case.

The DA’s office contends they did nothing wrong. They maintain that Willis and Wade roughly split the costs for their travel together and testified that their relationship began after Willis hired Wade to lead the Trump case.

Here’s what to look for moving forward:

Decision date: Fulton County Superior Court Judge Scott McAfee said Friday he is likely to rule within two weeks, which means a decision would come by March 15.

The timing has political significance. Noon Friday — March 8 — is the deadline for candidates to file paperwork to seek elected office in Georgia. Both Willis and McAfee are expected to qualify to run When McAfee’s ruling ultimately comes down will determine whether any would-be opponents know the outcome before they decide to jump in to challenge him or Willis.

McAfee said Friday he’ll “be taking the time to make sure that I give this case the full consideration it’s due.”

More evidence: Both the defense and the prosecution asked McAfee to admit additional evidence they believe bolsters their case.

The defense has pushed to enter Wade’s cell phone records, which show he — or at least his phone — was in the vicinity of Willis’ Hapeville condo in 2021, before they say their romantic relationship began.

The prosecution is seeking to include an affidavit from an expert who says those cell phone records are unreliable. They also want to admit a sworn statement from a Napa Valley winery employee who says Willis paid him in cash during a trip there. That could give credibility to Willis’ claim that she often paid for her share of her trips with Wade in cash. On Friday, McAfee said he might not need the additional records.

“It may already be possible for me to make a decision without those needing to be material to that decision,” he said.

If Willis remains: If the judge declines to disqualify Willis, the case against Trump and his co-defendants would presumably move forward, although it seems unlikely that the trial would begin on Aug. 5, as Willis had requested.

At least publicly, lawyers from both sides have been focused on the allegations against Willis since they first emerged in January.

Additionally, the U.S. Supreme Court has said it will hear oral arguments the week of April 22 on whether the president is immune from criminal prosecution. Trump’s legal team in Atlanta have lodged a similar claim of presidential immunity in the Fulton County and it’s likely McAfee would wait to hear what the Supreme Court has to say before deciding the issue locally.

A raft of issues are also still pending before McAfee stemming from hearings in December. One defense motion argued the actions and remarks of Trump and his supporters in the aftermath of the 2020 election are shielded by the First Amendment right to free speech. Another questioned whether the state’s racketeering law was being used properly.

If Willis is disqualified: Defense attorneys have asked for Willis and her whole office to be removed from the case. If McAfee grants their request, it would be sent to the Prosecuting Attorneys Council of Georgia, a nonpartisan, state agency that provides district attorneys across the state with training and support.

PAC would decide whether to assign another prosecutor to the case. PAC is led by Pete Skandalakis, a former DA from Coweta County.

Pete Skandalakis is the executive director of the Prosecuting Attorneys’ Council of Georgia.

Credit: Natrice Miller/AJC

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Credit: Natrice Miller/AJC

The council is also deciding whether to pursue charges against Lt. Gov. Burt Jones after Willis in 2022 was barred from investigating the Republican because she hosted a fundraiser for his Democratic opponent. More than 18 months later, the council has yet to announce next steps against Jones. That slow pace suggests it might not move quickly in the more complicated Trump case.

A Willis disqualification could also result in in lots of other thorny legal issues. Would a new prosecutor continue the probe using the state’s racketeering law, prosecute some but not all of the current charges or opt to abandon the case altogether? What would happen to the four Trump defendants who pleaded guilty last year? Would some of the pending legal issues need to be relitigated?