“[T]he indictment should have been dismissed and, at a minimum, [District Attorney] Willis and her office should have been disqualified from prosecuting the case,” Trump’s attorney Steve Sadow said, in part, in the appeal filed on Friday to an appellate court in Georgia.
Related: Fani Willis: ‘Train is coming’ for Trump despite efforts to derail Georgia case
The Fulton county superior court judge Scott McAfee noted in his ruling earlier in March that case law gave little instruction in his decision, which required either Willis or her special prosecutor Nathan Wade to withdraw from the case, after they were discovered to have had a romantic relationship.
The filing in Georgia’s state court of appeals on behalf of Trump and eight other defendants argues that an appellate court should clarify precedent on the question of “forensic misconduct” – an act by a prosecutor that requires disqualification in Georgia law.
It also argues that McAfee should have found an actual conflict of interest, and barring that should have disqualified Willis on the basis of an address she gave in the wake of revelations made in court filings by Ashleigh Merchant, an attorney for the defendant Michael Roman, that she had been romantically involved with Wade.
In what it described as the “church speech”, the appeal said Willis “while concealing her personal relationship with … Wade, improperly injected race and racial bias into the case, indicating that defendants and their counsel were racists for challenging her unethical conduct, that Defendants were guilty and would be convicted (boasting about her ‘superstar’ team with a ‘conviction rate of 95 percent’) … and implying that that God himself had chosen her for this case, that he was on her side, and that she was doing His work in this prosecution”, the filing argues.
McAfee described Willis as having had a “tremendous lapse in judgment” in his ruling, took issue with her description of the timeline of her relationship and described her using cash to cover costs incurred as she and Wade went on vacation together as leaving an “odor of mendacity”. But McAfee stopped short of directly accusing Willis of lying to the court.
In the appeal, lawyers argue directly that Willis had actually been untruthful in testimony about the relationship, creating an appearance of impropriety that requires her removal.
“The trial court labelled the cash repayments as ‘unusual’ and the lack of supporting documentation ‘understandably concerning,’” the filing states. “The trial court then went further, characterizing it is a ‘financial cloud of impropriety’.
“Stopping just short of calling their testimony regarding these alleged cash payments an outright fabrication, the trial court half-heartedly said that her testimony on this issue was ‘not so incredible as to be inherently unbelievable’.”
If the court accepts hearing the appeal, it would probably be to clarify what prosecutors can and cannot say outside court about a case, said Anthony Michael Kreis, a constitutional law professor and political scientist at Georgia State University College of Law.
“There is much less case law about public statements that might require disqualification than governing actual conflicts of interest,” he said. “The appeals court will not disturb judge McAfee’s findings of fact, and so because he found no evidence of an actual conflict of interest and provided a remedy for the appearance of impropriety he said existed because of Willis and Wade’s relationship, they’re very unlikely to be interested in the relationship-based allegations of a conflict at all.”
A spokesperson for Willis declined to comment on the filing.