Fulton County District Attorney Fani Willis’s prosecution against President-elect Donald Trump was already in trouble, but it may never pick back up now that Trump is headed for the White House.
A judge weakened the indictment this year by scrapping several charges from it. At the same time, the entire case was also thrust into a state of uncertainty after the Georgia Court of Appeals agreed to consider disqualifying Willis and after the Supreme Court issued its presidential immunity decision.
Now, in the event that the indictment does survive those glaring challenges, prosecuting Trump for the eight 2020 election-related charges he is facing appears to be an impossibility while he is in office.
The Department of Justice has a long-standing policy that prosecuting presidents would interfere with the separation of powers and that it is best practice to avoid it. The DOJ already signaled it would terminate Trump’s two federal criminal cases, and his two state cases in Georgia and New York could soon meet similar fates.
A source familiar with Trump’s legal plans predicted the Georgia case, which is only in a pretrial phase, would be tossed out, a remark that comes as Trump’s sentencing for his New York conviction for falsifying business records appears increasingly unlikely to occur.
“Looking holistically at the entire legal situation here, I mean, the campaign of lawfare against President Trump is now dead. Nothing is going to be moving,” the source told the Washington Examiner, adding that “Georgia is going to get dismissed.”
One complication in the case is several co-defendants, including former Trump chief of staff Mark Meadows, former Trump lawyer Rudy Giuliani, and former Trump DOJ official Jeff Clark, are still staring down charges in the case as well, and they are not protected by the DOJ’s policy.
Madeline Summerville, a Georgia-based attorney and consultant, said in the scenario where the case resumes after the U.S. Court of Appeals has ruled on disqualification, the remaining co-defendants could still be obligated to participate in the case without Trump.
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“It can still absolutely go forward without him,” Summerville told the Washington Examiner. “The deal with the RICO cases is that it’s difficult to try a bunch of people together, but that’s become sort of a trend because they’re establishing the conspiracy. … It would be interesting because Trump wouldn’t be able to testify if it was moving forward against the others, right?”
She also said if Willis is disqualified from the case, it would be handed over to another district attorney and the GOP-controlled state Senate would also have a say in the transfer.
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Summer another district attorney would decide the case “does not serve the public interest” and choose not to continue it.
Willis is facing the prospect of disqualification because of a previously undisclosed romantic relationship she had with a former special prosecutor she hired to lead the case. The Court of Appeals is set to hear oral arguments on Willis’s disqualification in December and will issue a decision sometime next year.
