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).
In a supreme loss for Fulton County”s Democratic District Attorney Fani Willis, Georgia’s top court has declined to review and reverse her disqualification from her frequently delayed RICO and 2020 election interference prosecution of Donald Trump, a decision that the president’s lead defense attorney said should end “lawfare persecutions of the President.”
The ruling from the Georgia Supreme Court early Tuesday morning came with three dissents and related to Willis’ cases against Trump, Mike Roman, David Shafer, Robert Cheeley, Mark Meadows, Cathleen Latham, Rudy Giuliani, Jeffrey Clark, and Harrison Floyd.
In December 2024, the Georgia Court of Appeals ruled in a 2-1 decision that Fulton County Superior Court Judge Scott McAfee made a mistake when he gave Willis and her handpicked special prosecutor Nathan Wade, with whom she had a romantic relationship, an ultimatum that one or the other had to go due to a “significant appearance of impropriety.” Rather, the appeals court said, McAfee “erred by failing to disqualify DA Willis and her office” because this was a “rare case” where the “significant appearance of impropriety” alone meant Willis and her office should be “wholly disqualified.”
“The remedy crafted by the trial court to prevent an ongoing appearance of impropriety did nothing to address the appearance of impropriety that existed at times when DA Willis was exercising her broad pretrial discretion about who to prosecute and what charges to bring,” the appellate court wrote. “While we recognize that an appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings.”
The appellate court noted that prosecutors failed to file a cross-appeal seeking to reverse McAfee’s finding of the appearance of impropriety, so the panel did not address whether there was sufficient evidence for that conclusion, and that issue remained relevant for the Georgia Supreme Court majority on Tuesday.
The lead concurrence, penned by Justice Andrew Pinson, noted that the majority rejected Willis’ request for review because “[t]he root of the problem is the State’s approach to litigating this issue on appeal” — contesting McAfee’s ultimatum as an “abuse of discretion” but not the judge’s finding of an appearance of impropriety.
“In the Court of Appeals, the defendants here appealed the trial court’s disqualification order, which (1) found that the conduct of the district attorney and special prosecutor created a ‘significant appearance of impropriety,’ and (2) as a remedy, determined that one of those two prosecutors would have to withdraw from the case,” Pinson explained. “In doing so, the defendants did not contest the appearance-of-impropriety finding, but they contended that the trial court’s ‘one of you has to go’ version of disqualification was error, and that it should have instead simply disqualified the district attorney. And critically, the State did not cross-appeal the trial court’s ruling.”
The concurring justice was not convinced that answering the question presented — whether a prosecutor “may be disqualified ‘based solely upon [an] appearance of impropriety and absent a finding of an actual conflict of interest or forensic misconduct'” — would actually “help resolve” the underlying case.
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“In an appropriate case, that question might warrant our review. The legal basis for a rule that prosecutors may be subject to disqualification based only on conduct that creates the appearance of impropriety is not clear,” Pinson wrote, before concluding that this case was, in fact, a “poor vehicle” for reaching that clarity.
“In short, rather than deciding any broader question about whether an appearance of impropriety can serve as an independent ground for disqualification of public prosecutors, the Court of Appeals’ decision appears to have resolved a narrow, case-specific dispute about the trial court’s choice of disqualification remedy,” Pinson said. “If that’s the best reading of the Court of Appeals’ decision — and I think it is — that decision does not raise a question of gravity that warrants our further review.”
While Pinson predicted that other McAfee-esque ultimatums, as coupled with the “specific and unusual circumstances” of the RICO case, is “not a question of Georgia law at all likely to arise in future cases,” and thus the high court declined to engage in “mere error correction” on an issue that doesn’t “have some broader impact on Georgia law.”
“[I]t seems more likely to me that the circumstances of this case are unique, and I am not convinced that parties will rely on it for anything broader than the Court of Appeals’ stated conclusion that, based on the specific findings in this case, the trial court chose the wrong remedy,” the justice concluded. “And of course, if this prediction turns out to be wrong, we will have the opportunity to address the legal question about the appearance of impropriety standard for public prosecutors when it is properly presented in a case without the unusual procedural limitations and other circumstances that make this case a poor vehicle for reaching that question.”
Justice Carla Wong McMillian, in dissent, said on the contrary that the “novel issue of gravity” surrounding disqualification of prosecutor based on the appearance of impropriety is such that it “affects every single active lawyer in the State of Georgia” and “is likely to recur,” making this a case well worth reviewing.
“No doubt, the facts of these cases are unusual and the cases are politically-charged due to the subject matter and the parties involved, including the current President of the United States. But neither the unusual underlying facts nor the identities of the parties deprive these cases of gravity,” McMillian wrote. “This is because the legal principles underlying the Court of Appeals’s ruling—in particular, the proposition that an appearance of impropriety alone can warrant and even require disqualification—are not bound to this specific factual scenario or to these specific parties but will instead apply to a wide variety of situations in which a litigant can show only an appearance of impropriety—and those situations are likely to recur with some frequency.”
In response to the ruling, Trump defense attorney Steve Sadow stated that Willis was doomed by her own “egregious” misconduct.
“The Georgia Supreme Court has correctly denied review of the Georgia Court of Appeals decision disqualifying DA Willis and her office as prosecutors in the Fulton County RICO case,” Sadow said. “Willis’ misconduct during the investigation and prosecution of President Trump was egregious and she deserved nothing less than disqualification. This proper decision should bring an end to the wrongful political, lawfare persecutions of the President.”
