Steve Sadow, attorney to former President Donald Trump, filed on Monday a request for review of Fulton County Superior Court Judge Scott McAfee’s decision to allow Fulton County District Attorney Fani Willis to remain on the high-profile election case.
Defendants Rudy Giuliani, Mark Meadows, Robert Cheeley, Michael Roman, David Shafer, Harrison Floyd, and Cathleen Latham, who had joined the initial motion for disqualification, joined the motion for a certificate of immediate review.
“Defendants believe that the relevant case law requires dismissal of the case, or at the very least, the disqualification of the District Attorney and her entire office under the facts that exist here, and the resignation of Mr. Wade is insufficient to cure the appearance of impropriety the Court has determined exists,” the motion reads.
Judge McAfee’s March 15 order had found that there was an appearance of impropriety but that a conflict of interest had not been proven. He found that disqualification did not need to be the “cure” to an appearance of impropriety, instead ordering special counsel Nathan Wade to be taken off the case.
Mr. Wade resigned hours after the morning order was issued.
Mr. Wade, an outside attorney contracted by Ms. Willis, had acknowledged a romantic relationship with Ms. Willis but testified it ended before the election case indictment was handed up.
Judge McAfee noted that his inconsistent answers under oath in his recent divorce case showed a willingness to “conceal” his relationship with Ms. Willis, and had opined that an “odor of mendacity” lingered on the prosecution team with Ms. Willis and Mr. Wade’s testimonies in his court.
Given the seriousness of the appearance issue as described by the judge, the defendants argued the removal of Mr. Wade was not sufficient.
Both the judge and defendants acknowledged they were in novel legal territory.
“Given the lack of guidance from the appellate courts on key issues, and the fact that any errors in the March 15 Order could be structural errors that would necessitate retrial(s), the grant of a certificate of immediate review is both prudent and warrant,” defendants wrote in the new motion.
Judge McAfee has a 10-day window to decide whether he will allow review of his disqualification decision. Although he had not mentioned review in the March 15 order, he had indicated it was likely when he issued an order quashing six charges from the 41-count indictment just days before that.
If the judge allows a review, pretrial proceedings could be halted up to 45 days while an appeals court decides whether to take the case.
Defendants argue this review should happen now, at the pretrial stage, because if review were delayed and “ultimately reversed on appeal such reversal would likely require the retrial of every convicted defendant without any additional showing of error or prejudice.”
Given that the racketeering case still has 15 defendants (four had accepted plea bargains) and is expected to run about half a year, counsel argued no one “should run an unnecessary risk of having to go through that process more than once.”
Forensic Misconduct Question
Although Judge McAfee ruled that defendants had not proven conflict of interest, he specified that a speech Ms. Willis gave was “legally improper.”
The speech the district attorney gave at the Big Bethel AME Church on Jan. 14 was the first time she had addressed allegations that she had an affair with Mr. Wade, who was married at the time and just recently settled a divorce. While she neither confirmed nor denied a relationship, she cast “racial aspersions” on those alleging she did, the judge found, noting that this could have been grounds for defendants to bring a motion for a gag order.
Mr. Sadow, who had argued this speech was improper when joining the original motion to disqualify, argued the appeals court may find this qualifies as forensic misconduct, and the open question merits review.
“At a minimum, the factual findings of the Court and the lack of appellate guidance from the Georgia courts on the issue weigh heavily in favor of immediate appellate review, especially given that the failure to disqualify a prosecutor who should be disqualified is a structural error that could necessitate a retrial without any additional showing of prejudice,” the motion reads.
“Seeking clear direction from the appellate courts on these critical issues at this pretrial juncture is a compelling and immediate interest.”
Judge McAfee had found caselaw on the standard for disqualification lacking, and opined that appearance of impropriety did not result in disqualification if a less “drastic remedy” was available.
The defendants disagreed; they argued that either actual conflict or interest or appearance of impropriety alone are enough, and that standard has been met in the case.
From The Epoch Times
