"Devastating news": Experts say DA's questionable decisions sink chance of pre-election TV trial

“There were lots of opportunities to get this moving much sooner," says Georgia law professor Clark Cunningham

By Marina Villeneuve

Staff Reporter

Published June 6, 2024 3:53PM (EDT)

District Attorney of Fulton County, Georgia, Fani Willis poses for photos in her chambers at the Fulton County Court House in Atlanta, Georgia on Tuesday, August 8, 2023. (Megan Varner for The Washington Post via Getty Images)
District Attorney of Fulton County, Georgia, Fani Willis poses for photos in her chambers at the Fulton County Court House in Atlanta, Georgia on Tuesday, August 8, 2023. (Megan Varner for The Washington Post via Getty Images)

The Georgia Court of Appeals’ order pausing proceedings against high-profile defendants in Donald Trump’s criminal election racketeering case in Fulton County makes it all but certain that the former president won’t have a televised trial before the November election, according to legal experts.

The Wednesday order stalls proceedings against Trump and eight of his alleged co-conspirators’ efforts to overturn the will of Georgia’s voters in 2020 – as a panel of three judges decides whether District Attorney Fani Willis will be allowed to stay on the case.

“For anybody who was interested in having this case tried before the election, which I think everybody should be interested in, this, of course, is devastating news,” Clark Cunningham, professor of law at Georgia State University, told Salon.

Atlanta defense attorney Andrew Fleischman called the decision “expected."

Meanwhile – legal experts say it’s unlikely the half dozen other defendants whose trial court proceedings have not been paused will end up being tried this year. 

Those defendants – including Trump legal adviser John Eastman, attorney Ray Smith III as well as state senator and alleged fake elector Shawn Still – did not appeal Judge Scott McAfee’s order declining to disqualify Willis. 

“John Eastman and Ray Smith and Sean Still all connect to the so-called fake elector scheme, which is probably the most significant issue,” Cunningham said.

Eastman — who has said that he wants to have his trial before 2025 — is alleged to have played a central role in the scheme devised by Trump and his allies in several swing states to create and submit fraudulent election certificates and the now-infamous slates of "fake electors." 

But Fleischman said trying those defendants before a decision could put the court in a “tough position.”

“It would be weird to hold a trial for the remaining people who have not moved to disqualify,” Fleischman told Salon. “It would be unusual because what if you get a conviction, and then it turns out that Ms. Willis should have recused herself in the other cases, what happens to those cases?”

Cunningham said the chance of anybody going to trial in 2024 is “slight.”

“The district attorney might choose not to – she always wanted to try everybody together,” Cunningham said. 

Similarly, Cunningham said the potential of Willis’ disqualification would likely make McAfee reluctant to start trying anyone while that issue remains undecided.

“Then even if she did, I think it's fairly unlikely that Judge McAfee would actually start a trial on any of these people before a decision from the Court of Appeals because if the Court of Appeals reverses him, that would probably apply to all the defendants, and I think he would be reluctant to start trial and then find out that the district attorney is disqualified either during the trial or when it's over,” Cunningham said.

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Oral arguments were initially set for Oct. 4. But the Atlanta Journal Constitution reported that because of a timing conflict, the date will be rescheduled.

The court has a constitutional requirement to rule by March 2025, though an earlier decision is possible.

“There's been some suggestion that the district attorney might ask for the court of appeals to expedite the appeal,” Cunningham said. “I would be pessimistic that's going to happen. If this panel of judges was sympathetic to the idea that the case should be allowed to move forward quickly, they wouldn't have granted the stay. So I don't think that's going to be very successful if she makes that attempt.”

A televised trial before the election would have been “incredibly important” from a public interest standpoint, according to Cunningham. 

“Everybody would be basically sitting in the jury box for probably months, hearing evidence, competent evidence, about what did, did not happen, and they could be making up their own minds about whether there was criminal interference with the election, and if there was, what was the role of Donald Trump,” Cunningham said. “And we've lost that opportunity before the election, and that's a consequence that may change world history.”

He added: “Had this case gone to a televised trial before the election, it might have had no effect on his election. If he was acquitted, it might have increased the possibility of his election, but it also might have significantly made it less likely for him to be elected. These are enormous, consequential things.”

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Cunningham said if Trump is elected in November, he’ll likely have his attorney general bring a lawsuit seeking a federal order to prevent the case from moving forward while he’s president. 

He said Trump would argue “the theory that a sitting president can't be prosecuted even in state court.”

“That issue would probably end up in the US Supreme Court, and I think that there could easily be five people on the current Supreme Court who would be sympathetic to that argument,” Cunningham said. 

Cunningham said proceedings against other defendants could continue, however.

Cunningham added that Willis could have avoided this scenario altogether. 

“We should look back at how slowly the district attorney moved in actually bringing this indictment,” he said. 

Cunningham noted that Willis sent out letters in early 2021 putting state officials on notice to preserve documents. But she didn’t ask for a special grand jury until January 2022, he noted. 

“She put in her request that the special Grand Jury wouldn't start work until May 2,” he said. “She never ever had a good explanation of why she wanted to wait that long.”

By the end of 2022, the grand jury issued its report and concluded its work in early 2023. 

But Cunningham notes that Willis didn't file an indictment until August 14.

“There were lots of opportunities to get this moving much sooner, which, in retrospect, certainly I think should have been done,” he said. “One can also question whether, in retrospect, it's even worth spending all the time and energy on a special Grand Jury versus simply moving quickly to indict Donald Trump, particularly based on the Raffensperger phone call.”

In Trump's infamous phone call to Georgia Secretary of State Brad Raffensperger, he beseeched him to "find" enough votes to overturn his 2020 election loss.

Willis faces possible disqualification over her personal relationship with lead prosecutor Nathan Wade.

Cunningham pointed to testimony from Wade and Willis that their romantic relationship began in February 2022 after he was hired. 

“It seems to me that they really only had two choices, both in terms of what was ethical and what was prudent,” Cunningham said. “At that moment, either they should have said: ‘Well, we are romantically attracted to each other, but we're going to have to keep our relationship professional until this case is over,’ or if they wanted to proceed with a romantic relationship, his contract for this case needed to end.”

By Marina Villeneuve

Marina Villeneuve is a staff reporter for Salon covering Trump's legal battles and other national news focusing on major legal and political narratives.

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Analysis Donald Trump Fani Willis John Eastman