Fani Willis' Latest 'Hail Mary' Could Be 'Game Changer'—Legal Analyst

Fulton County District Attorney Fani Willis' latest move to dismiss an appeal in the Georgia election interference case could be a "game changer," legal analyst Glenn Kirschner said on Thursday.

Trump, who is the presumptive 2024 GOP presidential nominee, and 18 co-defendants were indicted last August for allegedly conspiring to overturn President Joe Biden's 2020 election win in Georgia in a case brought on by Willis' office. The former president has pleaded not guilty to all charges and says the case is politically motivated.

Trump and some of his co-defendants sought to have Willis removed from that case over a conflict of interest after exposing a personal relationship between Willis and the former lead prosecutor in the case, Nathan Wade. Willis and Wade confirmed that they had been in a personal relationship that began after Willis hired Wade, but said that neither of them financially benefitted from it.

After a series of hearings in February, Judge Scott McAfee, who is overseeing the Georgia case, ruled that the evidence presented by the defense was "legally insufficient" to conclude that there was a conflict of interest, however, "the appearance of impropriety remains." McAfee said that Willis and her office would either need to step aside and let another district attorney take over the case, or Wade would have to withdraw. Wade resigned hours later.

Trump and some of his co-defendants then filed various motions to disqualify Willis or dismiss the case altogether. The court agreed to hear the motions in early May and on Wednesday, Willis' office asked that the defendants' appeal be dismissed as "improvidently granted due to the lack of sufficient evidence, based upon the explicit factual findings of the trial court," in a motion filed by Donald Wakeford, an assistant Fulton County district attorney.

Kirschner, a former federal prosecutor and frequent Trump critic, called Willis' motion "a long shot motion, admittedly, maybe even a Hail Mary motion," in a YouTube video posted on Thursday for his show Justice Matters. "But as we all know, sometimes Hail Mary passes get caught and they can be game changers."

Newsweek reached out to Fani Willis' office for comment via email on Friday.

The ex-prosecutor pointed out two principles of appellate litigation that were highlighted in Willis' motion.

"One, that only a trial court judge can make credibility determinations regarding the witnesses that testify in the motions hearing before the trial court judge, because only that judge is in a position to assess the demeanor and the mannerisms and the way the witnesses communicate and reach all important decisions about who is credible and who's not. And Judge McAfee did that and expressly included some of his credibility determinations in his findings," Kirschner said.

Kirschner then went on to explain the second principal: "Findings of fact, not just regarding the credibility of the witnesses, but all findings of fact made by the trial court judge are not to be disturbed on appeal...unless they are, here is the legal jargon, without record support. In other words, they should only be disturbed on appeal...if there's no evidence in the record to support them, or as Fani Willis sites in this motion, the legal standard in Georgia is if they are flatly incorrect. And they're not. Indeed, they're flatly correct."

"Therefore, DA Willis filed this motion saying, because there is no legal issue to resolve and because based on the principles of appellate court litigation, you can't revisit judge McAfee's factual, determinations, and credibility determinations because they're amply supported by the record," Kirschner said, adding, that Willis argued that the appeal "shouldn't even have been granted in the first place and [the appellate court] promptly return the case to Judge McAfee, to put it back on the trial track."

Steve Sadow, the lead defense counsel for Trump in the Fulton County case, denounced Willis' motion, calling it a "last ditch effort."

"The State's motion to dismiss the interlocutory appeal, which has already been permitted by the Court of Appeals, appears to be a last ditch effort to stop any appellate review of DA Willis' misconduct," Sadow told Newsweek in an emailed statement on Wednesday.

He continued: "The State's motion deliberately failed to mention that Judge McAfee's ruling stated an 'odor of mendacity remains' from the hearing testimony by the DA and the State's witnesses. The judge also said there were 'reasonable questions' as to whether Willis and former prosecutor Wade testified untruthfully. The State has tried this gambit before with no success."

In McAfee's February motion, he wrote that there were "reasonable questions" about whether Willis and Wade "testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it."

Kirschner said in his YouTube video that "nefarious litigants like Donald Trump are forever weaponizing the delay in the appellate process trying to run out the clock on justice." When asked if there is still hope that Trump's trial will happen before the 2024 election, if Willis' motion were to be granted, Kirschner told Newsweek via text message on Friday, "I'd say there is a VERY slim chance. Though it's highly unlikely."

Newsweek reached out to Sadow via email for comment.