Opposition to Defendants’ Attempt to Dismiss and Disqualify Fulton County District Attorney Fani Willis from the Georgia Election Interference Case

On January 8, 2024, defendant Michael Roman, a former Trump campaign official, filed a motion to dismiss the charges against him in the Fulton County, Georgia, election interference case. In the filing, Roman alleged that District Attorney Fani Willis improperly hired and had an inappropriate personal relationship with Nathan Wade, a member of the prosecution team. After the motion was filed, co-defendants, including former President Trump, joined it. The group argued that District Attorney Willis should be disqualified from the case because of this relationship. The group later claimed that some of District Attorney Willis’s public statements should be considered “forensic misconduct” in another attempt to disqualify her.

On February 5, 2024, States United filed an amicus brief in Fulton County Superior Court alongside Amy Lee Copeland, a former federal prosecutor for the Southern District of Georgia. The brief, which was filed on behalf of a group of prominent legal and ethics experts, opposed the dismissal of the grand jury indictment and the disqualification of District Attorney Willis from the case.

The February brief argued that:

• Disqualification imposes significant costs, historically leading courts to view motions for disqualification skeptically. Disqualifying District Attorney Willis from this case would be costly—the delay to get lawyers up to speed and the loss of counsel knowledge could undermine the strength of the case against these anti-democratic defendants and give an advantage to the defense.
• In all but the most egregious cases, prosecutors are trusted to fulfill their duties despite competing personal interests. The mere presence of a conflicting personal interest does not require disqualification. Prosecutors are entrusted by the public to make prosecutorial decisions in the public’s interest and not allow personal intimate relationships to interfere. For example, Georgia courts have previously refused to disqualify attorneys just because they were married to someone else working on the case. District Attorney Willis’s personal relationship is not indicative of her acting for her own personal interest regarding the election interference case and does not warrant disqualification.
• Disqualifying a district attorney in Georgia involves unique constitutional considerations that weigh against disqualification. District Attorney Willis is an elected official. The people of Fulton County voted for District Attorney Willis to represent their interests in all Fulton County Superior Court criminal cases. Disqualifying District Attorney Willis based on the current arguments against her is not aligned with the Georgia Constitution.
• The purpose of disqualification is to protect defendants’ due process rights. Other tools are available for potential misconduct that does not implicate fairness toward a defendant. Disqualification is meant to protect a defendant’s due process rights by limiting actions against the defendant based on “irrelevant or impermissible factors.” Wade’s alleged lack of experience and inappropriate hiring, as well as the statements made by District Attorney Willis, do not amount to an infringement of the defendants’ due process rights.

On February 15, 2024, the court held an evidentiary hearing on the defendants’ motions to dismiss the indictment or disqualify District Attorney Willis.

On March 6, 2024, the original signers of the February amicus brief filed a supplement, to provide the court with guidance from caselaw on the correct standard to employ when addressing the issue of disqualification.

On March 15, 2024, Judge Scott McAfee ruled against disqualifying District Attorney Willis. He found that Roman and his co-defendants failed to prove that District Attorney Willis’s relationship with her lead prosecutor, as well as her public statements, constituted a conflict of interest. In his order, McAfee wrote, “Without sufficient evidence that the District Attorney acquired a personal stake in the prosecution, or that her financial arrangements had any impact on the case, the Defendants’ claims of an actual conflict must be denied.”

Judge McAfee further ruled that the case could proceed if either District Attorney Willis or Wade stepped down to mitigate any appearance of impropriety. Following Wade’s resignation, Roman, Trump, and other co-defendants filed a motion to appeal Judge McAfee’s ruling with the Georgia Court of Appeals.

On March 20, 2024, Judge McAfee granted the defendants’ motion for a certificate of immediate review, clearing the way for them to ask the Georgia Court of Appeals to hear their appeal.

On May 8, 2024, the Georgia Court of Appeals agreed to hear the appeal. Briefing is complete; States United submitted an amicus brief on August 12, 2024, opposing defendants’ attempt to overturn the trial court’s order. This brief, on behalf of ethics experts and former federal and Georgia state prosecutors and defense attorneys, argues that Judge McAfee’s ruling was correct and that District Attorney Willis’s actions don’t meet the disqualification requirements in Georgia. It outlines a few key points, including:

• The trial court acted within its discretion when it denied the motion to disqualify. In Georgia, prosecuting attorneys can be disqualified over a conflict of interest or forensic misconduct, which the defendants failed to prove despite being given every chance to do so. Disqualification due to an appearance of impropriety is only allowed when conduct poses a “danger to the client” or is “part of a calculated plan” to sway jurors against the defendant. In that case, statements “must not only be improper, but egregious.” Judge McAfee determined that District Attorney Willis’s public comments didn’t deny defendants the opportunity to a fair trial.
• The mere appearance of impropriety doesn’t meet the standard for disqualification here. The Georgia Supreme Court has previously recognized that “disqualification isn’t necessary when a narrower remedy can cure the issue.” In line with this precedent, Judge McAfee ruled that either District Attorney Willis or Wade should resign to resolve any appearance of impropriety. Wade subsequently resigned.
• There was no clear error in the trial court’s factual and credibility findings. Despite defendants’ trying to relitigate the factual findings, including by relying on discredited testimony from their key witness, Judge McAfee’s factual findings and credibility determinations must be upheld.

Oral arguments are scheduled for December 5, 2024.

• Amicus Brief (February 5, 2024)
• Supplemental Amicus Brief (March 6, 2024)
• Amicus Brief in Opposition to Appeal (April 12, 2024)
• Appellate Amicus Brief (August 12, 2024)
• Backgrounder on the Fulton County Investigation
• Backgrounder on the Fulton County Charges

• Law360: Ex-Prosecutors Back Willis In Trump’s Appeal Of DQ Ruling
• NBC News: Fulton County DA Fani Willis case against Trump can continue
• The Atlanta Journal-Constitution: Ethics experts back up Fulton DA in Trump conflict-of-interest dispute