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Inset: Fulton County District Attorney Fani Willis looks on during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta (AP Photo/Alex Slitz, Pool). Background: Republican presidential candidate former President Donald Trump speaks after voting in the Florida primary election in Palm Beach, Fla., Tuesday, March 19, 2024 (AP Photo/Wilfredo Lee).
Attorneys for Donald Trump on Friday asked the Georgia Supreme Court to deny Fulton County District Attorney Fani Willis as she angles to get her office back on the long-frustrated racketeering (RICO) and election interference case against the president-elect and others.
Earlier this month, Willis filed a petition for writ of certiorari with the Peach State’s highest court. The district attorney argued a December 2024 decision by the Georgia Court of Appeals ignored precedent and created a new disqualification standard for prosecutors.
In response, Trump’s legal team says neither legal argument holds enough water for the state supreme court to even consider the cup.
In a 34-page response in opposition to the state’s petition, Trump blasts Willis for her “erroneous” understanding of that prior ruling.
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.
The trial court, when presented with the relationship and other evidence of Willis’ alleged untoward behavior, agreed that there was a “significant appearance of impropriety.” In turn, the trial court judge crafted a limited remedy: allowing either Wade or Willis to remove themselves from the case.
On appeal, the appellate court ruled for the defendants — finding the trial court’s remedy simply not enough. In short, that appearance of impropriety was too much the DA’s office to overcome.
Willis then asked for the state supreme court to step in.
“The opinion managed to overreach both upward and downward, invading the provinces of the trial court and this Court simultaneously,” the DA’s petition for writ of certiorari 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.”
Trump says Willis incorrectly interpreted that ruling.
To hear the president-elect tell it, the appellate court did, in fact, stick to the relevant precedent on disqualification.
“Contrary to the State’s petition, the Court of Appeals did not misapply [the] ‘continuum’ standard for the appearance of impropriety when it held that the undisputed factual findings as to DA Willis’ conduct-based actual impropriety mandated disqualification,” the motion reads. “Willis’ rare, specific conduct moved this particular case from the middle of the continuum to that portion where disqualification is mandated because it is the only remedy that could purge the taint of impropriety.”
In other words, the appearance of impropriety standard is a long-standing feature of Georgia case law, and the rare facts of the Willis case provided the rare instance where that standard mandated the prosecutor being tossed as the only viable remedy.
Moreover, Trump’s team argues, the Willis effort actually relies on a “contrived misunderstanding” of a key phrase in the appellate ruling.
The opinion uses the phrase “take … out” in reference to the above-noted continuum standard. To hear Willis tell it, the appeals court meant to discard the continuum standard — and create a new one.
Not so, Trump’s team, led by attorney Steve Sadow, says. Rather, the “take … out” language was the appeals court’s effort to apply the continuum standard to the “rare” facts of the case.
The appellate opinion reads, in relevant part:
Here, we must address the remedy in the context of a significant appearance of impropriety caused by the conduct of a public prosecutor … These considerations take this case out of the continuum of cases involving an appearance of impropriety in connection with the conduct of private counsel and a client’s interest in counsel of choice balanced against a more nebulous public interest.
“Here, the public’s interest and defendants’ interest in a disinterested prosecutor are aligned,” Trump’s motion goes on. “When applying the continuum, these distinctions demanded disqualification because it was undisputed that the public interest impacted by this significant appearance of impropriety was ‘more than’ nebulous.”
Essentially, Trump’s team says the major distinction the appellate court made was between private attorneys and prosecutors. In cases involving private attorneys, the public also has an interest in batting down the appearance of impropriety — but this is not enough to disqualify an attorney. In cases involving an elected attorney, however, the public’s interest in removing such an appearance is more salient.
To hear Willis tell it, this reads like special rules for prosecutors — and brand new such rules created by the appeals court.
Trump and his team say this is all wrong.
“The majority’s continuum application did not create a ‘new per se standard’ for prosecutors,” the motion reads. “That this application involved a public prosecutor was one aggravating fact that moved this case along the continuum and ‘out of’ the cases dealing with private practitioners.”
The motion goes on, at length:
A fundamental flaw in the State’s red herring argument (that the majority opinion created a “new per se rule”) is the supposition that disqualification was based on DA Willis’ status (i.e., public prosecutor). Not so. Both the trial court order and majority opinion emphasized that this “significant” appearance of impropriety was based on conduct. With undisputed findings of “specific conduct” at the center of the analysis, the State’s apprehension of a “per se” rule for prosecutors is unfounded.
The motion also says the state supreme court should deny the Willis petition for another reason related to the rareness of the case. The basic facts, Trump says, are not helpful to clarifying the law.
“[T]his question of Georgia law is not likely to recur,” the motion argues. “Mandatory disqualification of an elected District Attorney for a significant appearance of impropriety, for specific conduct, is unlikely to recur because no Georgia District Attorney has engaged in such egregious disqualifying conduct before and it is highly unlikely that any DA will ever do so in the future. No Georgia court has ever considered impropriety of this extraordinary magnitude.”
