The ruling by the Georgia Court of Appeals to deny President Trump’s request for a delay in District Attorney Fani Willis’s racketeering case underscores that the 45th president is far from in the clear in the Peach State.
The request came from Trump’s lawyer, Steven Sadow. He shared with the court that he plans to be abroad with his wife on December 5, when oral arguments are set to determine whether Ms. Willis can continue prosecuting the case she brought against Trump and 18 others for allegedly seeking to overturn the results of the 2020 election in Georgia.
Mr. Sadow told the court of appeals that the vacation is already paid for and that it is intended to celebrate his 45th wedding anniversary and 70th birthday. The appellate jurists, though, were not persuaded that those milestones warranted a new calendar for the case. The 45th president contends that Ms. Willis should be disqualified for comments with respect to race and her romantic relationship with her former boyfriend and special prosecutor, Nathan Wade.
That the December hearings are being held at all is a victory for Trump, who petitioned the appeals court to overturn Judge Scott McAfee’s decision allowing Ms. Willis to stay on despite finding that her conduct was defined by an “odor of mendacity” and that her comportment was “legally improper.”
Ms. Willis and Mr. Wade claim that their romance only began after he was hired. Trump adduces cellular telephone data that appears to show that the two prosecutors exchanged thousands of calls and texts before he selected to try Trump and his camarilla.
Trump, if he is to succeed at disqualifying Ms. Willis, will have to persuade the appellate judges that the financial entanglements between the district attorney and Mr. Wade amounted to a conflict of interest. Judge McAfee discerned a “significant appearance of impropriety” in the arrangement, but was of the opinion that it could be remedied if Mr. Wade stepped aside.
No prosecutor at Fulton County, which comprises much of Atlanta’s troubled downtown, has ever been disqualified for the kind of “forensic misconduct” that Ms. Willis is accused of by Trump and his co-defendants. The district attorney had sought to dissuade the Court of Appeals from revisiting Judge McAfee’s decision, but the judges, a majority of whom were appointed by Republican governors, insisted that they wanted to hear it.
Mr. Wade, a resident of suburban Cobb County who earned more than $650,000 for his work on the case despite never having prosecuted a felony before, took Ms. Willis on vacations to Aruba, Belize, and Napa Valley (for a wine tasting) while the two worked together. He used his credit card to pay, and Ms. Willis contends that she paid him back in cash stored at her house. Her father, in court, described that practice as a “Black thing.”
President Trump talks on the phone to Vice President Pence from the Oval Office on January 6, 2021. House Select Committee via AP
The case, which has ground to a halt as Ms. Willis’s behavior has taken center stage, could face other headwinds in the wake of the Supreme Court’s ruling in Trump v. United States that official presidential acts are presumptively immune from prosecution. That ruling applies to state prosecutions like Ms. Willis’s just as much as it does to federal ones like those being led by Special Counsel Jack Smith. In seeking to protect the prerogatives of a vigorous executive, the high court did not differentiate between jurisdictions.
It is possible that Ms. Willis — or her replacement if she is disqualified — would have to defend the viability of her indictment in the wake of this new doctrine of broad presidential immunity. If an act is deemed official, prosecutors now have a high bar to clear if they are to use it as evidence or for the basis of charges. Georgia will likely argue that Trump’s interactions with Georgia officials like the secretary of state, Brad Raffensperger, are unofficial.
The Georgia case could push other constitutional boundaries. One of Trump’s co-defendants, Chief of Staff Mark Meadows, has petitioned the Supreme Court to move his case to federal court on the grounds that immunity covers aids to the president as well. His brief to the Nine warns that the “threat posed by prosecutions against federal officers for actions relating to their federal functions does not evaporate once they leave federal office.”
The United States Court of Appeals for the 11th Circuit, though, has already ruled that “the events giving rise to this criminal action were not related” to Mr. Meadows’s official duties. The North Carolinian contends that the “Chief of Staff is a unique federal officer, the top aide to a coequal branch of government personified by the President.” He calls the law of immunities “underdeveloped.”
The point that a president’s advisers require some shielding from prosecution was marked by Justice Antonin Scalia in his landmark dissent in a 1988 case, Morrison v. Olson. Scalia warned that “the President’s high-level assistants, who typically have no political base of support,” would be intimidated by an independent prosecutor, and that it is unrealistic to reckon that “their advice to him and their advocacy of his interests before a hostile Congress will not be affected.” This would amount to “weakening the Presidency by reducing the zeal of his staff.”
