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Fulton County District Attorney Fani Willis arrives during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta (AP Photo/Alex Slitz, Pool).
Fulton County District Attorney Fani Willis came out swinging in a bid for the Georgia Supreme Court to put her and her office back on the long-frustrated racketeering (RICO) and election interference case against President-elect Donald Trump and others.
In late December, Willis and her Atlanta-based team of lieutenants were disqualified by the Georgia Court of Appeals. Now, the state claims they were wrongly divested of authority to continue their efforts by an error-filled opinion that ignored both facts and law.
“The majority’s opinion below overreached the Court of Appeals’ authority in all directions and warrants review on certiorari,” the petition for writ of certiorari filed Thursday morning begins. “The State respectfully requests that this Honorable Court grant certiorari in this case and correct the errors found in the majority opinion.”
The strongly-worded filing rubbishes the appellate court’s decision for creating “a new standard for disqualification unique to prosecutors,” and disregarding “decades of precedent” when Willis and her office were tossed for the “significant appearance of impropriety.”
Readers will recall that, by late January of last year, nine codefendants joined together in a seesawing effort to have Willis disqualified due to her romantic relationship with then-special prosecutor Nathan Wade.
That effort to disqualify Willis quickly picked up steam — kiboshing district court proceedings in the case. The dismissal case then went before the state’s court of appeals. In late November 2024, after Trump was elected to become the nation’s 47th president, the appellate court paused further proceedings “until further notice.”
The disqualification victory for the defendants soon followed — with Willis and her team vowing a fast appeal of their own.
In no uncertain terms, the district attorney’s office accuses the appeals court of improperly inventing new law by encroaching on the state supreme court’s actual authority to pronounce such standards and principles. And, at the same time, the prosecutors accuse the appellate majority opinion of essentially a poorly-written light touch on the issues for allegedly failing to grapple with the trial court decision that previously allowed Willis to stay on the case.
“The opinion managed to overreach both upward and downward, invading the provinces of the trial court and this Court simultaneously,” the petition reads. “No Georgia court has ever identified or applied a standard for disqualification unique to prosecutors. No Georgia court has ever disqualified a district attorney for the mere appearance of impropriety without the existence of an actual conflict of interest. And no Georgia court has ever reversed a trial court’s order declining to disqualify a prosecutor based solely on an appearance of impropriety.”
To hear the district attorney’s office tell it, the well-trod standard in Georgia — and the only one identified by the state’s highest court — is “disqualification for actual conflicts of interest” rather than the mere “appearance of impropriety.”
“This understanding has persisted to the present day,” the state’s brief goes on — citing precedent from case law: “The Supreme Court of Georgia has repeatedly held that an ‘actual conflict of interest’ is required to warrant reversal [of a conviction] for failure to disqualify. A ‘theoretical or speculative conflict’ is simply not sufficient …[A]pplication of the appearance of impropriety standard alone to authorize disqualification is not accepted practice in Georgia.”
The lower court overseeing the case did, however, identify that same “significant appearance of impropriety” and found that it “infects the current structure of the prosecution team,” with regard to Wade and Willis both remaining on the case.
In his March 2024 ruling, Fulton County Superior Judge Scott McAfee also referenced the concomitant standard that goes along with such an appearance and gave either prosecutor the option to quit. Wade resigned hours after that lower court ruling.
The Thursday filing acknowledges this history — but lambastes the appellate court for, in their opinion, simply going too far.
“While the trial court referred to the continued ‘application’ of the appearance of impropriety standard, the State submits, as it did below, that Georgia courts have not actually applied the appearance of impropriety standard rather than merely mentioning it in the context of review for actual conflicts of interest,” the filing continues.
And, to that point, Willis and her lawyers argue, the majority opinion intentionally unburdened itself from the facts of the case by engaging in a threadbare legal analysis.
“[T]wo sentences do not dispute the trial court’s finding that the District Attorney’s relationship with SADA Wade had not actually affected the case in any way,” the filing continues.
This analysis, the state says, has created an “unworkable” standard going forward that “uniquely applies to elected district attorneys.”
Willis explicates that new standard, a length:
The result of the majority’s cursory reasoning is as follows: (1) if an appearance of impropriety involving a district attorney is established, and (2) the remedy must address the appearance of impropriety’s possible effects upon the public perception of charging decisions, which necessarily involve the district attorney, even where (3) there is no actual evidence of those charging decisions being affected in any way, then an appearance of impropriety involving a district attorney will always require the disqualification of the district attorney and his or her entire office. The appearance, without more, demands the most drastic remedy.
“It announces a new standard without explaining how it works or what authorizes its implementation, ensuring confusion at best and a per se rule of disqualification at worst,” the Willis filing goes on.
And, with an apparent callback to the lower court’s original ruling on disqualification, the filing places a great task before the Peach State’s highest court: “a writ of certiorari is essential, lest the majority’s opinion be allowed to linger and infect the body of Georgia caselaw.”
