Fani Willis’s prosecution of Trump looks shaky post-election

The Fulton county district attorney, Fani Willis, has pledged to drive forward in her prosecution of Donald Trump, even as he once again ascends to the presidency. But the Georgia court of appeals may have other plans.

The appeals court on Monday abruptly canceled oral arguments scheduled for 5 December in Georgia v Trump et al, the racketeering case alleging that Trump and more than a dozen of his allies conspired to steal the 2020 election. The court offered no explanation, and has not replied to a request for comment.

Trump’s appeal of Fulton county superior court judge Scott McAfee’s order, which declined to disqualify Willis after bombshell revelations about a romantic relationship with her chosen special prosecutor, was to be argued before a three-judge panel. As part of their effort to dismiss the case, Trump and his co-defendants alleged Willis’s relationship meant she should be recused from the case.

Most cases before the appellate court are decided on pleadings, without oral argument. Nonetheless, the panel’s cancellation unleashed a wave of speculation about their intentions.

“There’s a decent chance that the appeal gets dismissed as improvidently granted because the court wants Judge McAfee to address how the case will proceed now that Trump is president-elect,” said Anthony Michael Kreis, a constitutional law professor in Georgia and a close observer of the case. It is also possible that the appellate judges may have concluded that “defendants didn’t satisfy their evidentiary burden and so there’s no need for [the appeals court] to intervene”.

Trump’s election has meant an end to federal prosecutions. Jack Smith announced that he would be winding down the case involving Trump’s mishandling of classified documents and election interference shortly after the election. Federal prosecutors are now concerned that a vengeful White House will target them in retribution.

Trump’s lawyers Wednesday asked the judge overseeing the hush-money criminal case for permission to make yet another play for dismissal, arguing that throwing out the case was necessary “in order to facilitate the orderly transition of Executive power.” The sentencing date of 26 November for his conviction is on hold.

If the court sets the Manhattan conviction aside, Georgia is the last line of prosecution remaining against Trump. It is a state-level case, in a state that has no meaningful avenue for executive clemency.

Willis reaffirmed her intent to pursue prosecutions on the case in comments last week, potentially waiting for Trump to come out on the other side of his four-year term. “If someone has an indictment in this office, no matter who they are, we continue to pursue those charges,” Willis, who was just reelected to a second term, said at a media availability. “I’m here for eight more years, is my plan, so if that’s what it takes for us to get justice in some cases, we come to work every day, we’ll come in and look for justice.”

McAfee, like Willis, had vowed earlier this year to continue the case as best he could even as appeals wended through higher courts. But in June the appellate court put a hold on lower-court proceedings until the question of Willis’ involvement in the case was resolved. Then in July it set a date for oral arguments a month after the election.

Ashleigh Merchant, defense attorney for Trump co-defendant Michael Roman and the author of the explosive filing in January that revealed Willis’ relationship with Wade and derailed the case, said she hopes the court will issue a ruling soon.

“We asked for oral arguments. We were awarded it. The only way that they’re continuing it … is if they’re going to rule,” she said.

Merchant likened the court’s posture to that of another client: Brian Steel, a defense attorney held in contempt during the prosecution of Atlanta rap artist Jeffery “Young Thug” Williams earlier this year. The court dropped oral arguments from its schedule, then issued a ruling a few days later in that case, she said.

But Merchant said she doesn’t believe that the appeals court is simply going to give Trump a pass, however, because there are other defendants who remain on the hook.

“That doesn’t resolve the issue for any of the others of us. That only resolves the issue for [Trump]” she said. “I feel like if they were going to do that, they would have continued the oral argument just for Trump and not for the rest of us. Or they would have severed the case somehow. Or they would have done something, because all of us are not in that same position.”