ATLANTA — A Fulton County judge signed off on the first step required to appeal his recent disqualification ruling allowing D.A. Fani Willis to remain on the 2020 Georgia election RICO case involving former President Donald Trump and others.
Wednesday morning, Superior Court Judge Scott McAfee granted what's known as a "certificate of immediate review" -- effectively a permission slip for defendants to take their appeal immediately to Georgia's Court of Appeals.
Judge McAfee, citing Georgia law, wrote that he was approving the certificate because the matter "is of such importance to the case that immediate review should be had."
The judge added that while the appeal is pending, he will continue to address other matters regarding the case at the trial level.
"The Court intends to continue addressing the many other unrelated pending pretrial motions, regardless of whether the petition is granted within 45 days of filing, and even if any subsequent appeal is expedited by the Appellate Court," wrote McAfee in his Wednesday order.
It is now up to the Georgia Court of Appeals whether to hear the appeal or not. Its decision could substantially impact the timeline of this case.
In a statement, the Fulton County District Attorney's Office said that with McAfee's decision to not halt proceedings while the appeal plays out, "this office will work to move it forward to trial as quickly as possible."
"We will limit our comment on the appellate matter to what we file with the Court of Appeals during the briefing process," the statement from Jeff DiSantis, a spokesman for the D.A.'s Office, said.
Trump's attorney, Steve Sadow, said McAfee's order to allow the appeal to go forward was "highly significant."
"The defense is optimistic that appellate review will lead to the case being dismissed and the DA being disqualified," Sadow said.
After reading this morning’s ruling, former Gwinnett District Attorney Danny Porter said that McAfee’s decision to grant the certificate of immediate review does not halt his ability to continue to address other pretrial matters while the appeal is pending. However, he believes an answer from the Court of Appeals will be necessary before a trial can begin.
“I don’t think the real trial can begin with this pending,” said Porter.
An attorney, Frank Hogue -- who represented Jenna Ellis in the RICO case but is no longer actively involved -- told 11Alive the procedural timeline will now include a 10-day window for the defense team to take their appeal to the Georgia Court of Appeals.
"Then the (Court of Appeals) has 45 days to accept or reject," Hogue said. "If (they) accept, then they set a briefing schedule and then possibly oral argument then whatever time it takes to issue an order."
Emory Law's John Acevedo noted that the case is only delayed if the Court of Appeals overturns McAfee.
"In his order granting the certificate of review Judge McAfee stated that he would continue to review unrelated motions in the case. Therefore as a practical matter the appeal will not immediately effect the timeline of the case," Acevedo said. "If the Court of Appeals were to overturn the ruling and remove DA Willis that could then pose a serious delay."
Acevedo also described how the appeal would be considered.
"The appeal will be made to a three judge bench of the Georgia Court of Appeals who will determine if they wish to hear the appeals," Acevedo said. "All appeals are based on the record as it was presented to the trial court, the Court of Appeals does not normally hold evidentiary hearings to obtain additional information."
On Monday, Trump and seven others filed a motion to appeal Judge McAfee's ruling which allowed Willis to stay on the case if special prosecutor Nathan Wade stepped down.
The appeal decision came after McAfee's ruling Friday that did not find Willis' relationship with Wade amounted to a conflict of interest that should disqualify her from the case, but did find that the relationship created an "appearance of impropriety."
Judge McAfee said that appearance could be resolved -- and Willis and the remainder of her staff could continue prosecuting the case -- if Wade stepped down. Wade resigned that same day, allowing Willis to remain on the case.
But defense attorneys are arguing the ruling did not go far enough. They claim that "case law requires dismissal of the case, or at the very least, the disqualification of the District Attorney and her entire office."
Trump's lead defense attorney, Steve Sadow, publicly commented on his preference to immediately appeal the decision.
"The motion notes that the Court found that Willis' actions created an appearance of impropriety and an 'odor of mendacity' that lingers in this case, but it nonetheless refused to dismiss the case or disqualify her," Sadow said.
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