The judge overseeing the sprawling case against former President Donald Trump and his co-defendants in Georgia’s election interference probe is expected to decide by Friday whether he’ll disqualify Fulton County District Attorney Fani Willis and her office from prosecuting the case. If he does, what would happen next?
In mid-February, Fulton County Judge Scott McAfee heard hours of fiery testimony about the romantic relationship between Willis and the special prosecutor she hired for the case, Nathan Wade. There were arguments from both sides about the timeline of the relationship as well as whether the relationship was “improper” and amounts to a conflict of interest.
ALYSSA POINTER / Getty Images
Willis and Wade have admitted to the relationship, which they say ended last summer, but both argued there is no conflict of interest.
Willis’ disqualification would also extend to her office. The case would then be referred to the Prosecuting Attorneys’ Council of Georgia Executive Director Pete Skandalakis. In a statement to CBS News, council spokesperson Tracy Walston said Skandalakis would have a few options.
“The executive director can appoint a district attorney, a solicitor-general, a retired prosecuting attorney, an attorney employed by the Department of Law, designate an attorney from the Prosecuting Attorneys’ Council, or appoint a competent attorney to act as district attorney pro tempore in place of the district attorney,” she said.
Walston says the council has been faced with the disqualification of district attorneys in the past and the process for replacing them is the same as the one for recusals.
Possible scenarios
Naming a district attorney in another county would be one possibility. Georgia has 159 counties, 129 of which voted Republican in 2020. The remaining 30 counties, all in more urban parts of the state, voted Democratic in that election. But even if the case were to be referred to another office, the new prosecutor would have oversight on whether to add, drop or amend the charges Trump and several others face. Those kinds of changes could require reopening the investigation, which would delay the trial for months, likely beyond the presidential election.
Judge McAfee could also decide to not remove Willis but still refer the matter to an oversight agency.
“He could just refer this whole matter to the Bar Association, or to another ethics board, and say that it should not stop this trial,” CBS News legal analyst Rikki Klieman said.
Controversial Fani Willis speech
Aside from the financial misconduct allegations, Trump attorney Steve Sadow asked McAfee to remove Willis’ office for forensic misconduct after her fiery speech at the historically black Big Bethel AME Church in Atlanta in January. In the speech, Willis suggested questions were raised about why Wade was hired because they both are Black.
“These assertions by the DA engender a great likelihood of substantial prejudice towards the defendants in the eyes of the public in general, and prospective jurors in Fulton County in particular,” Sadow’s motion said.
“It’s very persuasive. The problem is that it’s probably too far away from trial,” Klieman said. “You know, if she had made the church speech on the eve of jury selection, that would be a really strong argument.”
“Judge McAfee is in a difficult place,” Klieman said, adding that it would be “a courageous move for any judge to disqualify a district attorney’s office.”
She believes if Willis is removed from the case it would significantly delay prosecution.
“I do not believe the case will be dismissed,” she said, “but I do believe that at this moment in time, disqualification is an open question.”
The former president and remaining 14 co-defendants deny wrongdoing and have pleaded not guilty to the charges against them. Four original co-defendants have taken plea deals.
