The Lawfare Podcast: Judge McAfee Rules Fani Willis Can Stay

[Audio Excerpt]

Andrew Fleischman

This case is not going to be done by November, even if it starts in August. They might be thinking, “Well, let's just see what happens then, see if he has a way of getting us out of trouble.” There's all kinds of little offshoots and off-ramps here. Or the House could do an investigation into Fani Willis and find something new. There's those Senate proceedings we saw with Ashleigh Merchant. Another reason this is a victory for the defense is there's now so much attention focused investigating this prosecutor that was not there before and that creates opportunities for new ways out.

[Main Podcast]

Benjamin Wittes

I'm Benjamin Wittes and this is the Lawfare Podcast, March 18^th, 2024. Friday morning in Fulton County, Georgia, Judge Scott McAfee issued an opinion in the matter of the disqualification of District Attorney Fani Willis. It was not a complete victory for anybody. The defense didn't get Fani Willis booted from the case, but they did get Nathan Wade booted from the case. Fani Willis has to contend with the loss of her special prosecutor, as well as some scorching criticism from the judge. Joining me in the virtual Jungle Studio to discuss it all were Fulton County Reporter and Lawfare Legal Fellow, Anna Bower and Andrew Fleischman, a Georgia defense attorney and frequent Fani Willis critic. We talked about what Judge McAfee did. We talked about whether there is a serious prospect for a successful appeal. We talked about what Fani Willis's next moves are likely to be and whether there's going to be a spree of plea deals in response. And we talked about whether the case is now back on track and headed to trial.

It's the Lawfare Podcast, March 18^th: Judge McAfee Rules Fani Willis Can Stay.

As expected, Judge Scott McAfee, aka Boy Wonder, handed down his ruling in the Fani Willis disqualification matter. 23 pages, which is long for the usually reticent Judge McAfee. Guess what? It says that everybody was a little bit right and nobody was a hundred percent right. That's the holding and nobody gets to claim complete vindication here. But, Fani Willis does get to fight another day. Nathan Wade almost certainly does not. And we're going to chew it all over. Anna, Give us the thumbnail version of what Judge McAfee ruled before we get into who won and who lost. Let's stick with what did he actually say?

Anna Bower

Right. So remember there were two issues here. One is the question of whether Fani Willis ought to be disqualified as a result of this alleged financial benefit that she received related to her relationship, a romantic relationship, with Nathan Wade. Then there was also this issue of the speech that she made at a historically black church, in which she defended herself against the claims that she'd had a conflict of interest related to her relationship with Nathan Wade. The defendant said that both of those things amounted to disqualifying conduct under Georgia law. Judge McAfee's opinion that he sent down today ultimately concluded that there was no actual conflict of interest here. He also said that the speech at the church was not disqualifying. However, he did find that as it relates to what was presented at the evidentiary hearing related to the relationship between Wade and Willis did amount to an appearance of impropriety. And as a result of that appearance of impropriety, he said that although it doesn't require disqualification, there does need to be some sort of remedy here. And he ordered the district attorney, as a result, to choose between either recusing her entire office, or parting ways with Nathan Wade as it relates to his role as special prosecutor on the case. So basically, the prosecution cannot continue until either Willis recuses or Nathan Wade withdraws from the case.

Benjamin Wittes

And just to be clear, that is kind of a magician's choice, in the sense that there's no circumstances in which she can choose the recusal, which was basically the remedy that the defense was asking for. It's basically an order to fire Nathan Wade, or to have Nathan Wade withdraw.

Anna Bower

I think that's right, Ben. I cannot imagine a universe in which Fani Willis decides to recuse her entire team from this case.

Benjamin Wittes

Including Nathan Wade.

Anna Bower

Yes, which would include Nathan Wade.

Benjamin Wittes

It's basically like saying, “Alright, Wittes, you can either fire Anna Bower, or you can fire yourself and everybody, including Anna Bower.”

Anna Bower

Including me. Yes, exactly. So it's a false choice. So basically, he says, “You can continue prosecuting this case. But Nathan Wade has got to go.”

Benjamin Wittes

Alright, so here's my first question to you both. Is it a good opinion? Does it adequately address the issues? And is it going to stand up on appeal either in as an interlocutory matter, if it goes that way, or in a post-conviction setting?

Andrew Fleischman

Well, to start, I think it's a pretty good opinion that addresses most of the arguments. I feel like the couple of spots he didn't really hit that I might have wanted to see is first off, whether the specific way of charging the case led to delay and more money for Nathan Wade. Now, he talks about how after charging, she wanted the case to move forward. But most of his billing came before the case was indicted. So she didn't really talk about that aspect of it. And he didn't really talk about Nathan Wade's billing. Like, “Hey, why did this guy bill 3,000 hours without ever putting his name to a document or writing anything?” On the other hand, it's a good opinion. I think he gets through the analysis really thoroughly. He found some creative area within this big gray expanse of Georgia law, which I felt was indeterminate. And he reached the conclusion he wanted to reach.

Benjamin Wittes

What did you think, Anna?

Anna Bower

Yeah, I'm still mulling it, but I think it's a good opinion. And it's a nuanced opinion, and I think that it does the job of both coming to the right conclusion of law, in my view, while also appropriately touching on concerns that many people have had about, for example, Nathan Wade's apparent lack of candor before the tribunal. It is really remarkable though, actually, to see a prosecutor publicly reprimanded like that. So I think that that's one of the things that I found pretty remarkable about the opinion. I actually wasn't sure--we talked before and you asked me to give some predictions about the order. And I think I said, I think he will not disqualify, but will maybe be a little bit critical of the district attorney's office. He certainly was more critical of—

Benjamin Wittes

--the “odor of mendacity.”

Anna Bower

He really he put them on blast. And Andrew, I don't think you were expecting that either. So it was interesting to see that, but I do overall think that it is a good opinion. Some of the issues, though, that I will say on appeal, I think that it's going to be difficult, given the findings of fact that he made, for the defendants to win on the actual conflict issue on appeal. There were a number of factual findings he made about how he found that the district attorney did not have a material pecuniary benefit from the relationship, various things like that, that I think that given those factual findings, an appellate court might have a difficult time overturning the idea that there was no actual conflict here.

But what I do think is important to note for appellate issues, he did find there's an appearance of impropriety, so it's possible that a court could say that he got it wrong by saying that an appearance of impropriety doesn't demand disqualification and so that's something to look for there. And then the other thing that was interesting to me, and I'm curious for Andrew's thoughts on this, the forensic misconduct part of the order where he's talking about, in particular, this speech that Fani Willis gave at a historically black church. He ultimately found it didn't amount to forensic misconduct, but he did say, “But it was legally improper.” And he even went so far to say that maybe it was time for a gag order to be placed on the prosecution.

Benjamin Wittes

He invited a motion to that effect. He specifically said, “Maybe it's time for that. But that's not the remedy that this motion asks for.” Hint, hint, hint.

Anna Bower

Right, and so I think that maybe the forensic misconduct issue is actually one that would be arguable on appeal. But again, curious to hear Andrew's thoughts on those issues.

Benjamin Wittes

Wait, let's do this in, in order. I want to talk first of all about what the mechanism for an appeal of this is because there's this assumption that a lot of people have that he's gotta certify this for interlocutory appeal, and we're going to have some delay while the courts of appeals handle this. I'm not certain that's right, and Andrew, you actually have practiced in Fulton County. What happens when a judge makes an order like this? Is this normally, if there is a normally, does this get dealt with in the post-conviction direct appeal context? Does it get certified for interlocutory appeal? If the latter, does the rest of the proceeding freeze while the court of appeals thinks about it? How does the appeal here work?

Andrew Fleischman

So, if you want to do an appeal here, you probably have to request a Certificate of Immediate Review, which you have to do within 10 days. You then have 10 days after that to write a whole brief with the record to the Court of Appeals, ask them to take the case, and they can take it or not. If either the judge or the Court of Appeals says no, you're back to square one. You're right back where you were. The defense can definitely attempt this. I don't think they can get a direct appeal through what's called the Collateral Order Doctrine because Georgia typically does not grant that for this sort of case.

I'm not sure Fulton County can appeal at all, though. Even though 15-18-5 Subsection G allows them to appeal if the office is disqualified, he didn't disqualify the office. And we tend to construe this really strictly. So the Court of Appeals might be like, “Well, there's no disqualification here. You just chose to disqualify yourself rather than to get rid of Wade,” and thus there's no appeal. Something tricky to think about. On the off chance that Fani Willis makes the insane decision to hold on to Wade, which could happen, right. This is a case about bad decisions.

Benjamin Wittes

But, wait. Let's assume Fani Willis is a semi-rational actor. Nathan Wade understands that disqualified prosecutors, like fish, go stale after a few days and the odor is not good, so he lets himself go, saving her the trouble. But the defense lost on some big points here, and if I'm Ashleigh Merchant Or Steve Sadow, there's no reason not to go, not to seek a certificate of immediate appealability, right?

Andrew Fleischman

No reason in the world, and the issues are pretty good. I mean, the judge made some bad factual findings on whether Fani Willis benefitted financially, but some pretty good ones on her credibility, on what the impact of her speech at AME Bethel Church likely would have been, things that a court could look at and say, “Well, we agree with you factually, but we think it's a more serious legal issue than you put.” And again, this is not a well-defined area of law. Courts can do what they want.

Benjamin Wittes

Okay, so just let's get the procedure in place. So 10 days. You got 20 days to file this stuff, both before Judge McAfee and before the Court of Appeals. Either one can say “no,” and if that happens, presumably the issue is preserved for direct review. Like, yeah, “I know I got convicted of RICO, but my prosecutor had a conflict of interest, and so I didn't get a fair trial.” That's pretty clean. But what if they say yes? Does case then become, like a federal case, go into a sort of suspended animation, or is this a pure issue of law that can be resolved in good time? So long as you don't empanel a jury and take the case through trial, you can do two things at once, like the removal proceedings.

Andrew Fleischman

A notice of appeal acts as a supersedeas, that's a Latin phrase, which means it pauses everything in the case below. So if that goes up, everything is paused, and the only exception to that rule is if the judge finds the appeal is frivolous, which I don't think Judge McAfee would be likely to do if he granted the certificate.

Benjamin Wittes

All right, so the bottom line here is that as a procedural matter, if both McAfee and the Court of Appeals want this heard now, it will involve a delay in the proceedings that will be as long as the appeal takes to resolve, assuming it is resolved in her favor.

Andrew Fleischman

Yeah, about 18 months, I would expect.

Benjamin Wittes

So that would be a pretty substantial, just getting the certificate of appealability, it's a pretty substantial win for the president and his codefendants.

Andrew Fleischman

Yeah, getting the certificate would be big if the Court of Appeals agrees. Now the Court of Appeals says “no” pretty quickly when it says “no.” So this case could go right back on track pretty quickly if they're not interested.

Benjamin Wittes

Gotcha. Alright, so now let's talk about the issues. It seems to me that Judge McAfee did something that basically no analysts anticipated, at least none that I've seen. So there were analysts like Anna and me, who said the standard is actual conflict of interest. This doesn't rise to the level of actual conflict of interest. Therefore, looks bad, but Fani Willis wins. There were analysts like you who said, assuming the standard is actual conflict of interest, there is an actual conflict of interest here and she should be disqualified. Judge McAfee says something else, which is, “Alright, yeah, there's an actual conflict of interest standard that mandates disqualification, but there's a lower standard, appearance of conflict that allows for disqualification, but allows for some other remedy too.” And in this case, the remedy is get-rid-of-the-goddamn-person-who-you-have-the-financial-relationship-with, and that cures the appearance going forward. So my question is, do either of you know of anybody who publicly anticipated this argument? Or is this a McAfee innovation here?

Andrew Fleischman

Joshua Schiffer, a Georgia attorney, anticipated this argument. I gotta give him full credit.

Anna Bower

Yes, I spoke to Joshua Schiffer yesterday, actually, and he didn’t specifically say that it was going to be based on because there's an appearance of--like, it wasn't exactly this, but it was basically, his prediction was, no disqualification, but some kind of consequences for Nathan Wade. Which, Ben, I will say, I don't know that we were totally far off on that. Because the two of us, I don't know if we wrote this, but when we were talking, we did say that maybe there's a referral to the bar for Nathan Wade there, or some other consequence. We thought it was maybe not going to be the case that Nathan Wade would be disqualified, but that maybe there would be something that McAfee does with respect to Nathan Wade.

Andrew Fleischman

Well, actually last time I was on here, I think you suggested that Nathan Wade would be taken off the case. And I was like, “Well, they're not asking for that. I don't think the judge can do that.” So I was dead wrong. And you were pretty close to right.

Benjamin Wittes

Well, but not for the right reason. I mean, our theory of getting Nathan Wade out, is that he had displayed an obvious lack of candor with the tribunal and a prosecutor simply isn't credible after doing that. But what I didn't anticipate, and what I think is quite clever on McAfee's part, is not accepting the binary between the actual conflict and--actual conflict means, unless you're Andrew Fleischman, Fani Willis wins; appearance of conflict means Fani Willis loses. And what McAfee says is, “Okay, actual conflict means Fani Willis wins, but appearance of conflict doesn't mean she wins completely, but it means if there's if there's an appearance of impropriety, we can order some lesser remedy to clear it.” And I did not see that one coming. Your thoughts.

Andrew Fleischman

It was clever. And the ultimatum is clever. So it's an ultimatum, if the office is disqualified, she's doing it to herself. But at the same time, she can't complain that it's unfair to put it on her that she has to fire Wade. It was a really clever way to preserve the ruling for review and let it hold up on review.

Benjamin Wittes

Anna, have we heard anything today from the DA's office in response to this ruling?

Anna Bower

We haven't. I reached out to a spokesperson for the DA's office and have not heard back on a request for comment. We have heard from some of the defense counsel in the case who have released statements. The bottom line is that what I was interested in looking for in those statements was any indication that they might appeal. None of those statements that I have seen for attorneys that I've reached out to outright say that the defendant intends to appeal. For example, Ashleigh Merchant said that they're waiting to see what the DA's response would be. Ashleigh Merchant, of course, represents Mike Roman, who is the defendant who initially lodged this motion. And then Steve Sadow in his statement said that they disagree, for example, with the judge's decision on forensic misconduct. And in particular, Trump is the one who raised that particular issue when he adopted Mike Roman's motion. And then Steve also said, “We are exploring all of our legal options to end this prosecution that was unfairly brought against Trump,” blah, blah, blah. But what's notable in that statement is that it doesn't directly say whether or not they intend to appeal, but for the reasons that Andrew gave earlier, I think that I would be surprised if they choose not to seek a Certificate of Review.

Benjamin Wittes

I mean, you get whatever percent shot you assign at a long delay. Why wouldn't they do that?

Andrew Fleischman

Oh, little update. Nathan Wade just submitted his resignation, it looks like.

Benjamin Wittes

You heard it here first, folks. Nathan Wade off the case. Alright, so now we actually know something about Fani Willis's response, which is that Nathan Wade resigns. So let's talk about who won this. Assuming that that is the totality of Fani Willis's response, that is, she's now cured the problem as Judge McAfee describes it. Did she win this? She lost Nathan Wade, but the case is intact. She may have to have a year and a half delay for an interlocutory appeal, but she may not. Did she win?

Andrew Fleischman

It's the definition of a Pyrrhic victory, I would say. A big win is like—

Benjamin Wittes

We're gonna call it a Willick victory from now on?

Andrew Fleischman

Yeah it's like, listen, a big win is like, the judge says, “This is all baseless, no hearing.” That's what people were calling for at the beginning, no hearing at all. Instead, there was a hearing, there was an appearance of impropriety, and the judge strongly hinted that Willis and Wade were dishonest in the hearing. So, okay, it's a win and that she stays on the case, but staying on the case was the default. This just means she dug herself partway out of the hole she was in. I would say the optics are quite bad, and jurors are going to know about it. It's a Pyrrhic victory.

Benjamin Wittes

Anna, what do you think? Is this a win for Ashleigh Merchant? It's clearly a loss for Nathan Wade, but is it a win for Ashleigh Merchant, a sort of win for Fani Willis, or a fought to a bruising stalemate between the two?

Anna Bower

I mean, look, it is an immediate legal victory for Fani Willis today, but I think that this whole issue of the disqualification matter has nonetheless been a political blow to the district attorney's office and the public perception of the case. And to that end, I think that it's probably seen as a win whether or not they won on the particular legal issue, some of the rhetoric that is in this opinion, it does not speak kindly of the district attorney's office and is highly critical. And I think that probably defense counsel see a silver lining in this opinion and the very fact of having brought this entire motion and really changing the subject of the prosecution. There were many months there in which it seemed like defense council just had basically no wins. They were very few and far between and it all of a sudden with this motion changed the subject from Donald Trump attempting to overturn the results of the 2020 election to Fani Willis's relationship with Nathan Wade. No one has been talking about the 2020 election as it relates to this case for the past two months. So it's the change of the subject tactic was successful. Whether this will be a blip in the long term or not is still up in the air, but as we've said, this seems like it potentially could go up on appeal, which causes a delay, and that was part of the strategy for Trump's team. So it's a win for them. And then also, on the other side of it though, gotta say if you're someone like Mike Roman and you're still being prosecuted by Fani Willis at the end of the day, it seems like if you had a chance at getting a very generous plea before, I would be very worried about that if I were Mike Roman now.

Benjamin Wittes

So that anticipates my next question, actually, which is, it seems to me, let's talk about the game theory of this from the defendant's point of view. Because if you and Andrew, I'm particularly interested, you've had clients in interaction with this office. So If I were a defendant here, let's say my name were Mike Roman or Cathy Latham, so one of the lesser defendants who realistically probably is not going to go to trial one way or the other. You have 10 days to file a notice or a request for an appeal. You're going to find out pretty fast whether that appeal is happening. If that appeal is not happening, let's say we know that in 30, 40 days, that's the moment where you're going to plead, right?

Andrew Fleischman

Yeah, I mean, to be honest, for me, if my client was offered misdemeanor first offender probation on a RICO case, that would have been the moment I'd plead it, because that's a really good offer. He didn't take that offer because he was philosophically motivated to stick it to the DA. So I think the normal motivations you would think about for, “Oh, I want to avoid going to jail,” just aren't operating for this guy. He wants to stick it to her for ideological reasons.

Anna Bower

I think that's true for a lot of these defendants. There's many of them who, if this were any other case and any other people, the rational game theory situations would mean that many of these people would have already pleaded out. But there's a political and ideological dimension to all of this that I think means that what we typically would see in another RICO case, maybe, or even beyond RICO is not maybe what we'll see here.

Benjamin Wittes

Right, but I do think it's a little bit different if your lawyers are telling you, “We’ve got the dirt on her and she's got a conflict and we're going to blow it up and we're going to make her life a living hell and we're going to expose the conflict of interest with Nathan Wade.” And you can talk yourself into a lot of optimism in that situation. But then you don't prevail on the key point, which is blowing up the case, and you're staring in the face the possibility that Judge McAfee might actually set a trial date. And maybe the Court of Appeals doesn't think this is the most urgent thing in the world, because at the end of the day, it's a pretty good opinion. Nothing concentrates the mind like a hanging, and nothing concentrates the mind with respect to a plea deal like an impending trial. And I do think there are still many more of them who haven't pled out than are realistically going to go to trial, and it seems to me this is a moment where, if I were Fani Willis, I'd be giving out pleas pretty generously at this point.

Andrew Fleischman

Well, that's been the pattern. I mean, everybody who's pleaded out has gotten a deal that I would have done a little yippy dance if I got it for my client. Like, those are all great deals. It's a matter of whether it's the principle of the thing for them or whether they just want to take the safe bet and go out. And a lot of these people are a little nutty. So they tend to go the nutty route.

Anna Bower

Yeah, and I'm also interested, Andrew, in how you think some of this is also impacted by the fact that there are at least one, possibly two--I actually need to check on Trevian Kutti, so Shawn Still and Trevian Kutti--two of the defendants who had extended deadlines. In Kutti’s case, it was because her counsel withdrew right before the deadline for pretrial motions. Shawn Still is a Georgia state senator, and by state law that means that while he is in session for the General Assembly, the lawmaking body in Georgia, his deadline is automatically stayed until April, which means that both of those individuals could potentially raise a second disqualification motion. But because Nathan Wade is now resigned, it seems like is it moot or will they still be working to dig up some new dirt? That kind of thing. How do you think, Andrew, that any of that could impact what some of these defendants are thinking in terms of what they're going to do with respect to a plea?

Andrew Fleischman

Well I'm confident they're all looking for more stuff. You can't raise the same claim again and expect different results. So if they're going to raise something, it might be, “Oh, we have additional evidence they were together before 2022. And it's the lie under oath that is the problem. And look, you already said they weren't credible.” As far as how it affects their thinking on a plea deal, I might play chicken with the state a little bit on this one. It seems like the state doesn't want to try this many cases. You look at all those people who filed statutory speedies. And then right before trial they got this fire sale. So they might be thinking, “Hey, what if Donald Trump wins and becomes president?” This case is not going to be done by November, even if it starts in August. They might be thinking, “Well, let's just see what happens then, see if he has a way of getting us out of trouble.” There's all kinds of little offshoots and off-ramps here. Or the House could do an investigation into Fani Willis and find something new. There’s those Senate proceedings we saw with Ashleigh Merchant. I mean, another reason this is a victory for the defense is like, there's now so much attention focused investigating this prosecutor that was not there before, and that creates opportunities for new ways out.

Benjamin Wittes

Yeah, I think that's a really important point that, Fani Willis is bloodied, and one of the things about Ashleigh Merchant's investigation here is that there was an investigation and one of the things when you hire a lot of investigators, dirty little secret people, you get a lot of leads. And what we've seen is the one lead or the two or three leads brought together that panned out, but you should assume that they're working on other stuff. Now, I'm not casting any aspersions on Fani Willis, but investigation has a way of taking on a life of its own, and I think these are defense lawyers who smell blood in the water.

Alright, let's go back to the point that Anna raised earlier, which is the lesser discussed component of this opinion, forensic misconduct. And just for listener benefit, for those who don't know, forensic misconduct does not mean that you've messed up the microscope in the FBI crime lab. It means some kind of misconduct in your role as a prosecutor or that affects or could be expected to affect the proceedings. And it is, independent under Georgia law, ground for disqualification. So, I was actually a little bit surprised that Judge McAfee took Sadow's allegations here as seriously as they did. Steve Sadow is Trump's lawyer in the case, and his motion was centered around this speech that Fani Willis made at AME Bethel after the Ashleigh Merchant motion was filed. And Fani Willis said in the speech that, repeatedly suggested, or stated directly, that they were going after Nathan Wade because he was Black. And repeatedly suggested, but did not, importantly, explicitly referenced the defendants, and the only named people in it were politicians, and didn't suggest that anybody was guilty. And so my view of it was, elected DAs are, among other things, politicians, and they make political speeches, and they defend themselves, and sometimes do so in terms that are not ideal from a court perspective. But this isn't, of all the things that get said in this case, this is pretty minor league stuff. And by the way, it doesn't mention any of the defendants, and by the way, it doesn't mention any of the guilt or innocence of anybody or even the merits of the case. And Judge McAfee did not see it that way. He saw it as an impropriety, a significant impropriety, but one that didn't rise to the level of forensic misconduct that would require or justify disqualification, but might rise to the level with a different motion that you would slap a gag order on the prosecution. And so, I want to start with you on this, Andrew. Am I understating how bad that speech is or was he overstating it? Who's right, me or McAfee?

Andrew Fleischman

To me, it seemed pretty bad. I mean, listen, the rule as a prosecutor, when you make a public statement, it's just got to be about the bare facts of the case, and you're not supposed to say stuff to heighten condemnation of the accused. Now, there's an exception if you are responding to allegations against you, which she was, and I think that is a good defense. But, to have a conversation with God where you were discussing how racist the people accusing you of things are, yeah, that strikes me as pretty outside the bounds of even normal prosecutor stuff. A normal prosecutor might give a press conference and say, “There are baseless allegations against me, and I refute them utterly.” That's one thing. This was like a, nothing I've ever seen before, type of thing. So, yeah, to me it seems distinct. I'm not saying that they definitely win, but it's bad enough to be worth a mention.

Benjamin Wittes

What do you think, Anna?

Anna Bower

Yeah, Ben, I'm with you. I was a little bit surprised that he said things with respect to this speech and in this order that, like I said, I think could make for a decent issue on appeal in that he's saying that we're too far removed from jury selection to establish a permanent taint of the jury pool. But I mean, that implies that he thinks that the jury pool was tainted. He says that he can't find that it crossed the line, but it again, seeming to imply that it's a pretty close call, but it doesn't quite cross the line. I don't know. I was surprised that he felt that it was that close of a call. Like you, Ben, I thought that, although I didn't think it was really proper a way to approach her response, I didn't see it as something that would amount to forensic misconduct in the way that Georgia courts have described it. And there are responses and arguments that people can make on the other side of this. But when she was making this speech, she said people like Marjorie Taylor Greene or Bridget Thorne, who is a city commissioner in Fulton County. Those are the people who she seemed to be talking about, which again, you can make arguments that that's just a veiled way of talking to the defendants.

But, there was a lot of criticism of her that was not coming from the defendants that were directed at her at this time, that this disqualification motion had been filed days before this speech. So she had a lot of publicity that was ongoing about it. She could have been speaking more broadly to critic of her as a result of the disqualification motion. And as you said, she is a public figure, a politician. Though again, don't think that it's something that any prosecutor--it's not a good look for a prosecutor to be saying this stuff, but I just am surprised you found it to be such a close call.

Benjamin Wittes

Alright. Let's wrap up with reasonably anticipatable predictions here. Do either of you doubt that Ashleigh Merchant will take the freebie on behalf of Mike Roman and appeal on the actual conflict of interest question?

Andrew Fleischman

I'd be surprised if she didn't.

Anna Bower

Yeah, I would be surprised if there's no appeal.

Benjamin Wittes

Okay. And is the appeal that the facts that he found amount to an actual conflict, or is the appeal that the right standard is mandatory disqualification under the appearance of conflict that he did find, or the appearance of impropriety that he did find?

Andrew Fleischman

Both. You want to throw the kitchen sink at this argument and give the Court of Appeals every opportunity to rule for you.

Benjamin Wittes

So it's the right standard is appearance and mandatory disqualification, but even if, assuming arguendo, that the judge got the standard right, the facts that he found still amount to--so that's what Ashleigh Merchant is going to do. I think it's a no-brainer. Alright, Steve Sadow takes up the forensic misconduct issue too, right?

Andrew Fleischman

Yeah.

Anna Bower

I think so.

Andrew Fleischman

It's not bad. I don't I think as far as forensic misconduct goes, that's about as bad as I've seen a prosecutor talk in a case. It might not strike you as terrible because of the political, but at least for a prosecutor, this was unusual.

Benjamin Wittes

Yeah, I mean, look, I was surprised to read--I had not particularly focused on this aspect of it and was surprised to see it seemed like more of a throwaway argument to me than some of the other stuff. And so I hadn't really focused on it and I was surprised at how seriously Judge McAfee took it. But that said, look, he's a serious guy, and the fact that he took it that seriously suggests that there's work to be done with it. Alright, next question is, are there any other appeals arising out of this, or are those the two issues?

Andrew Fleischman

Oh, well that's the fun thing. Under Georgia law, if you take up an appeal for one thing, you can appeal every other ruling in the case, if you want to, under 5-6-34 (D). So I don't even know the full expanse of what is going on in this case that could be appealed, but let me just say all of it.

Benjamin Wittes

So not just the rulings within the four corners of this opinion, but anything else you feel like bringing in, how he's interpreted RICO and everything else?

Andrew Fleischman

Yeah, you could absolutely do everything with it and there's nothing stopping you.

Benjamin Wittes

All right, next question. Does Judge McAfee grant the certificate on either of these two questions?

Andrew Fleischman

I'm not sure he will. And the reason I'm not sure is because yesterday in his order on the special demurrer, he said, “I will grant a certificate,” and on this one, he did not.

Anna Bower

Yeah, I was going to say the exact same thing. Actually, I have been saying for weeks now that Judge McAfee is almost certain to grant a Certificate of Immediate Review. But after this order, I've changed my mind a little bit. I think that maybe he won't. As Andrew said, there was an order a few days ago. It's the one in which he dismissed several counts that are in the indictment. And in that order, in a footnote, he said the state can appeal. And he said the reason being that there's a lack of precedent on this issue in Georgia, and I would be inclined to grant it. There was no equivalent footnote in this order. It seems to be the case that, I don't know, there's just something about the way he crafted this where he made sure--he granted it in part. He seems to feel like he is curing any idea that there is something improper or conflict and now Nathan Wade has resigned. So I'm just a little bit unsure now that he will grant a Certificate of Immediate Review.

Benjamin Wittes

Okay, penultimate question, or third from the last question. If he grants the certificate, does the Georgia Court of Appeals hear this case?

Andrew Fleischman

I would just be guessing because it depends on which three judges you get. There's 15 judges on the Court of Appeals. You have no idea which panel you're going to hit or what their political affiliation or ideas were. If I at least knew the panel it was hitting, I could be like, “Oh, this guy says this.” Really, no idea. They could grant or not grant for any number of reasons.

Benjamin Wittes

So, okay, do you have a guess on this, Anna? 

Anna Bower

I mean, a just a guess, I'm going to say no.

Benjamin Wittes

Alright, so you both think that it is by the preponderance of the likelihood, unlikely that they're going to get the certificate, and then at a minimum, no idea whether the Georgia Court of Appeals is going to hear the thing. So if you do the math and you call one a 30 percent chance and one a, I don't know, call it another 30 percent chance. You're talking about a vanishingly small chance that this thing actually has an appeal at this point, which brings me to the penultimate question, which is, okay, so when are we going to have a trial if this thing isn't going to get heard by the Court of Appeals? Is he going to go ahead and schedule a trial?

Andrew Fleischman

I mean, at the soonest August. So there's probably no way that the trial is done before the election.

Anna Bower

I think that the question is not just when are we going to trial, because I think actually the answer to that question is going to vary based on defendant.

Obviously they're all still in the same trial category now, that remaining group of defendants has not been severed. But there's several other things going on with various different groups of defendants. So they're all on different timelines in some respects. I mentioned Shawn Still and Trevian Kutti have later deadlines, there's the defendants who have sought removal and those appeals are not entirely exhausted. You have Trump who has a presidential immunity motion that is pending before Judge McAfee, a very similar motion to the presidential immunity motion that is pending before the United States Supreme Court. So I doubt that a trial judge in Georgia is going to rule on that before the United States Supreme Court weighs in. But you have some other defendants who might be ready to go to trial a little bit sooner. John Eastman, for example, has said he wants to go to trial before 2024 is over. And McAfee has suggested that maybe there's going to be three different trial groups for this case. So, I think it’s possible that we see some defendants go to trial before 2024 election, but I think it's very unlikely that we see Donald Trump go to trial before the election.

Benjamin Wittes

Alright, last question. Andrew, we get off this call, your phone rings. And it's Fani Willis. And she says to you, “Fleischman, yeah I need a new special prosecutor. I hate your guts, but I'd rather have you inside the tent pissing out than going on the Lawfare Podcast and pissing in.” What terms would you take?

Andrew Fleischman

For Twitter to be [inaudible] in an hour? Done! That sounds so fun! Like, I love law, I love being a lawyer. I get to prosecute this case and it's an interesting case. I and maybe I could argue motions instead of Adam Abbate. I might be a little better at it. That would thrill me. Come on, we all thought it. It sounds like a tremendous amount of fun, but I don't think that Miss Willis wants to hang out with me every day. I don't look nearly so nice in a suit as Mr. Wade.

Anna Bower

And also, you would try to convince her to drop the RICO count.

Andrew Fleischman

I would. I would, as hard as I could.

Benjamin Wittes

We are going leave it there. Andrew Santos Fleischman, Anna Marie Bower thank you both for joining us today.

Andrew Fleischman

Thank you so much for having me.

Benjamin Wittes

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode is the intrepid Anna Hickey of Lawfare.

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