After Trump’s election, future murky for Fulton RICO case against president and Georgia allies

Caption

Fulton County District Attorney Fani Willis would take the stand as a witness during a hearing in the case of the State of Georgia v. Donald John Trump at the Fulton County Courthouse.

Credit: (AP Photo/Alex Slitz, Pool)

The Georgia Court of Appeals’ scheduled Dec. 5 hearing on the latest development in the Fulton County racketeering indictments of President-elect Donald Trump and his allies remains on track despite the results of last week’s presidential election.

The state appellate court is set to hear arguments next month on the request from the former and now incoming Republican president and several co-defendants seeking to remove Fulton County District Attorney Fani Willis from the 2020 presidential election interference case. The amount of uncertainty has grown around the future of the case following Trump’s decisive win over Vice President Kamala Harris in the Nov. 5 presidential election.

Legal experts said they expect the appellate hearing to remain on schedule as the court considers the petition to disqualify Willis because of a prior romantic relationship with the special prosecutor she had hired to lead the case.

Questions still linger about the felony racketeering case against Trump and his remaining 14 co-defendants, and the case has mostly been on hold until after a ruling is made on the appeal.

A U.S. Department of Justice precedent dating back to the Watergate era holds that the federal law enforcement agency can’t prosecute a sitting president.

Georgia State University law professor Anthony Michael Kreis said the options for Willis are to drop the charges against Trump and proceed against the other defendants or find another legal mechanism or to wait until after Trump leave’s office in 2029 before resuming the case against the outgoing president.

Any possibility of Trump’s case not being prosecuted until 2029 would likely be the result of negotiations or a court order, Kreis said.

“While Donald Trump can’t be tried while he’s sitting in the White House, there’s nothing preventing Fani Willis from pursuing the charges against everyone else,” Kreis said. “That second option is unclear how it works because generally we don’t let charges hold in abstinence for four years.”

Former Gwinnett County District Attorney Danny Porter agreed that Willis’ ability to continue prosecuting Trump is greatly limited following the election.

“I don’t realistically see her going after Trump and the co-defendants,” he said. “Her options to me are to dismiss the whole case No. 1, or No. 2, try the co-defendants and leave Trump for another day or not at all.”

Porter said that Willis might be able to successfully stall the case until Trump’s leaves office even though Trump’s lawyers would argue she was denying his right to a speedy trial. Porter is not optimistic about Willis’ chances of surviving the upcoming appellate court decision, which is expected in 2025.

“I think just from looking at the way the wind is blowing I think she’ll have a hard enough time not getting recused,” Porter said. “I don’t think she’s going into a friendly court.”

Trump and 18 others were indicted in August 2022 for allegedly conspiring to overturn the 2020 presidential election results. President Joe Biden’s Georgia win was confirmed by multiple recounts and audits, and all court challenges to his victory were unsuccessful.

Four people have already pleaded guilty to misdemeanor changes in the Fulton election case. Their plea agreement requires them to testify against Trump and the other 14 remaining defendants.

If Willis is disqualified, then the case would be sent to the Prosecuting Attorneys’ Council of Georgia for a new prosecutor to be assigned.

The appeal came from Trump and co-defendants including former Trump campaign officer Michael Roman, former Trump attorney Rudy Giuliani and ex-White House Chief of Staff Mark Meadows. On Tuesday, the U.S. Supreme Court denied a petition from Meadows seeking to move his charges from state court to federal court.

The Georgia Court of Appeals disqualification hearing will proceed whether Trump is part of the case or not, Kreis said.

“That’ll happen no matter what because most of the co-defendants have joined in the appeal,” Kreis said. “Whether or not Trump is still one of the defendants, the issue is still alive.”

The push from Republican officials for Willis to drop the case intensified in the days following last week’s election. Alpharetta Republican state Sen. Brandon Beach said Friday that it’s time to lower the temperature in politics while also calling for an end to the Fulton election interference case.

“The American people have delivered a historically significant vote in favor of the strong leadership Donald Trump brings to the White House, signaling a rejection of politically influenced lawfare,” Beach said in a statement. “Fulton County District Attorney Fani Willis should follow the example set by the Department of Justice and Special Counsel Jack Smith by immediately dismissing the criminal indictments against President Trump and other innocent persons in Fulton County.”

The Nov. 5 general election also resulted in Willis easily winning a second term as the top prosecutor in the Democratic stronghold of Fulton County. Should the high-profile election interference case fail, Willis’ decision to pursue the probe in the first place could come under greater scrutiny.

“There’s sort of an old saying that if you get reelected, you have about a six-month honeymoon period,” Porter said. “If you make a controversial decision, you have three-and-a-half years for the public to forget it. I think probably if she’s going to dismiss the case then she should do it pretty early.”

Trump’s federal cases hit stumbling block

When a grand jury in Fulton County indicted Trump and 18 others on racketeering and conspiracy charges in August 2023, it was the fourth case that year that pressed criminal charges against Trump.

A federal election interference case against Trump now appears to be winding down after special prosecutor Jack Smith asked a federal judge Friday to suspend case deadlines after Trump’s election.

Attorney General Merrick Garland appointed Smith in November 2022 to oversee federal investigations into Trump for his connection to the Jan. 6, 2021 breach at the U.S. Capitol and for the classified documents stored at Trump’s Mar-a-Lago estate in Florida.

Trump has publicly stated that after his Jan. 20 inauguration he will promptly fire Smith, who indicted Trump on charges of illegally attempting to overturn the 2020 election and for allegedly mishandling of documents marked classified.

Prosecutors have appealed a Florida judge’s decision to dismiss charges related to Trump alleging he illegally removed classified documents from the White House.

In another case, a New York judge said Tuesday that he will issue a decision next week on whether Trump had presidential immunity that should have protected him from being convicted of falsifying business records by a jury this spring. A U.S. Supreme Court ruling in July asserts that presidents have immunity from facing criminal charges for acts conducted in their official capacity.

For now, Trump is scheduled to be sentenced Nov. 26 on 34 felony counts of falsifying business records related to hush money payments promised to adult film star Stormy Daniels during the 2016 presidential campaign.

Kreis said there is some legal justification for pursuing co-defendants of Trump even if a president is legally shielded from criminal charges.

“I think you could make a forceful argument that it’s essential that people who are subordinates and allies know they will be tried for their crimes if they assist a president in unlawful conduct,” he said.

This story comes to GPB through a reporting partnership with Georgia Recorder.