The Georgia Court of Appeals’ decision on Thursday morning to remove Fulton County District Attorney Fani Willis and her office from the state’s felony prosecution of Donald Trump drew a sharp rebuke from one of the court’s three appellate judges, who dissented due to being “particularly troubled” by the circumstances surrounding the move.
“We have no authority to reverse the trial court’s denial of a motion to disqualify,” wrote Judge Benjamin Land in his dissent. “None.”
The Peach State’s three-judge appeals panel agreed in a 2-1 decision to remove Willis and her office from the Trump case, holding that the trial court erred in allowing Willis and her office to remain on board after concluding that Willis’ romantic relationship with former special prosecutor Nathan Wade resulted in the “significant appearance of impropriety” and created a conflict of interest due to pecuniary motives.
Since January, Trump and his co-defendants have advocated for the removal of Willis and the Fulton County DA’s Office. His Fulton County case revolves around allegations that the president-elect and 18 others conspired to overturn his 2020 Georgia election loss.
Trump’s indictment accuses the former and future President of beseeching then-Georgia Secretary of State Brad Raffensperger to “find” enough votes so that Trump could carry the battleground state, as well as attempting to persuade Republican state lawmakers to appoint a different slate of college electors who would vote in Trump’s favor.
Willis and Wade’s “private” relationship became public in February as part of court documents filed to disqualify them from the case, along with the Fulton County District Attorney’s Office. In March, Fulton County Superior Judge Scott McAfee ruled that, while Willis had demonstrated “a tremendous lapse in judgment,” she could remain on the case as long as Wade was removed, which he was.
The defendants were granted an immediate appeal, which resulted in Thursday’s 2-1 majority decision in their favor.
“After carefully considering the trial court’s findings in its order, we conclude that it erred in failing to disqualify DA Willis and her office,” Judge Trenton Brown wrote in the majority opinion on Thursday, supported by Judge Todd Markle.
“The remedy crafted by the trial court to prevent an ongoing appearance of impropriety did nothing to address the appearance of impropriety that existed at times when DA Willis was exercising her broad pretrial discretion about who to prosecute and what charges to bring,” Mr. Brown stated.
“While we recognize that an appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings.”
In his dissent, Land described how he was taken aback by the majority’s decision not to defer to McAfee’s ruling, as well as a refusal to exercise “restraint.” Land insisted that “the law does not support the result reached by the majority” and that “we are not trial judges,” and should not act as such.
“I am particularly troubled by the fact that the majority has taken what has long been a discretionary decision for the trial court to make and converted it to something else entirely,” Land told the jury.
“If this Court were the trier of fact and had the authority to choose a remedy based on our own observations, assessments of the credibility of the witnesses, and weighing of the evidence, we might be justified in reaching the result declared by the majority. But we are not trial judges, so we lack that authority.”
Given the trial court’s “unique role,” Land argued that McAfee, not the appellate judges, had “broad discretion to impose a remedy that fits the situation as it finds it to be.”
“We should not lightly interfere with their work or weaken their discretion by imposing our will because we don’t like the result,” Land told the crowd. “We should resist the temptation to interfere with that discretion, including the chosen remedy, simply because our perspectives differ.
Doing otherwise violates well-established precedent, jeopardizes the discretion granted to trial courts, and blurs the line between our courts.” Land stated that he was “respectfully” dissenting because he was “convinced that is what the majority has done” in this case.
“Our role as appellate judges is critically important, but it often requires restraint,” Land said. “We are here to ensure that the law has been followed correctly and to correct any harmful legal errors that we see. It is not our job to question trial judges or substitute our own judgment for theirs.
We do not determine the facts, but rather defer to the trial court’s factual findings where there is evidence to support them.”
Willis’ disqualification comes just one day after her office filed court documents requesting that the appeals court reject Trump’s request to dismiss his indictment due to a lack of jurisdiction and presidential immunity.
Willis also kept the wheels turning in her racketeering (RICO) prosecution of Trump last week, despite the pending appeal, by publicly rejecting congressional investigators’ requests for documents related to her office’s correspondence with special counsel Jack Smith about criminal investigations involving the future president.
