If a Georgia judge signs off on a bid to disqualify Fulton County District Attorney Fani Willis from her racketeering case against former President Donald Trump and numerous co-defendants, it could delay any trial until well after the 2024 election — and possibly scuttle the charges altogether, legal experts told NBC News.
For a new prosecutor to take over the sprawling 15-defendant case would be a “massive undertaking,” said Amy Lee Copeland, a defense lawyer and former federal prosecutor in Georgia, adding that the theoretical new prosecutor could decide to amend the charges or even “decide not to pursue it.”
Fulton County Superior Court Judge Scott McAfee held an evidentiary hearing on Thursday and Friday over misconduct allegations that have been aimed at Willis and the special prosecutor she appointed to the case, Nathan Wade. Michael Roman, one of Trump’s co-defendants, alleged the pair engaged in an “improper, clandestine personal relationship” and “have enriched themselves off this case.”
Willis and Wade have denied any wrongdoing. McAfee has not yet ruled on the motion, but said earlier this week, “Because I think it’s possible that the facts alleged by the defendant could result in disqualification, I think an evidentiary hearing must occur to establish the record on those core allegations.”
If McAfee were to grant Roman’s motion, it would grind the case — which currently does not have a scheduled trial date — to a halt. If Willis were to be disqualified, her entire office would be as well, Copeland said.
Under a 2022 Georgia law, when a district attorney is disqualified, the case is referred to the executive director of the Prosecuting Attorneys’ Council of Georgia, who is tasked with finding another prosecutor for the case.
“If Judge McAfee signs an order disqualifying DA Willis, it becomes incumbent upon me to select a special prosecutor and appoint a special prosecutor,” the council’s executive director, Pete Skandalakis, told NBC News.
Skandalakis, a former district attorney, said his office would “begin by looking for who has the resources and capability — not only personnel and expertise but also financial” to handle such a case.
“The bigger the case, the more expense is involved,” he said. He would also be mindful of “geography — who’s closest to the site” — and “who has an extremely high caseload and who has a light caseload.”
“You’re looking for someone who’s a neutral arbiter and can make decisions based upon the evidence,” and ideally someone who wants to take the case, Skandalakis said.
“As I read the statute, a DA cannot refuse an appointment, but it’s best to find somebody willing to take on the assignment,” he said.
In addition to various DA’s offices, Skandalakis could choose to keep the case himself, assign it to the state attorney general’s office or appoint a private lawyer as special counsel, but he said financial constraints make the last option unlikely.
“If I were to appoint a private lawyer, the statute constrains me to pay the hourly rate of an elected district attorney, which is about $70 an hour, and I can’t pay for him or her to hire an investigator” or other help, he said.
He said whoever takes over the case would be able to use the investigative work that’s already been completed by the DA’s office, but they’d also have the ability to do additional investigative work and to use — or discard — some or all of Willis’ indictment.
“You have to look at the case as if you’re starting from scratch,” he said.
Asked how politics could come into play in his potential search, Skandalakis, a Republican, said, “I think it would be disingenuous to say politics isn’t a part of any process, but I’m still looking for someone who could be neutral and could make their decision based on the evidence that’s available.”
J. Tom Morgan, a professor at Western Carolina University and a former DeKalb County district attorney, said any new prosecutor would likely “skinny” the case down to make it “a more manageable, triable case.” The current indictment is “a pig’s breakfast, a total slop,” he said.
But, he added, it would take time for a new prosecutor to get up to speed and then trim it down. “Ms. Willis’ office has been on this case for two and a half years,” he said.
There could be other delays as well. If Willis were to appeal a disqualification ruling, Skandalakis said he would hold off on appointing a new prosecutor until the appeal was decided.
“If she wins the appeal, it wouldn’t make sense for me to appoint somebody and then it goes back to her, so we’d have to wait,” he said.
The disqualification statute does not set out a time table to act. Skandalakis said there would be no statute of limitation issues since the defendants have already been indicted.
Copeland said any lengthy delays could trigger individual speedy trial claims.
She added that history doesn’t indicate that the process of finding a new DA will move swiftly.
In July of 2022, Willis was disqualified from investigating Burt Jones, then a state senator who was running for lieutenant governor, as part of the Trump probe. The disqualification came after she hosted a fundraiser backing a Democratic candidate running for the same job.
That probe was then sent to the Prosecuting Attorneys’ Council, which has yet to select a prosecutor to continue the investigation into the now-lieutenant governor. “This wouldn’t be faster,” Copeland said.
Skandalakis said that case has different issues and court-ordered constraints.
“The two are completely different animals,” he said.