By Dareh Gregorian—
NBC News
If a Georgia judge disqualifies Fulton County District Attorney Fani Willis from her blackmail case against former President Donald Trump and numerous co-defendants, it could delay any trial until well after the 2024 election, and possibly
sink the charges in full,
legal experts told NBC News.
For a new prosecutor to take charge of the extensive case of 15 defendants would be a “massive task,” said Amy Lee Copeland, a defense attorney and former federal prosecutor in Georgia, who added that the specialist could decide to modify the charges or even “decide not to continue with the case".
Fulton County Superior Court Judge Scott McAfee on Thursday and Friday held an evidentiary hearing on allegations of misconduct that have been leveled against Willis and the special prosecutor he appointed to the case, Nathan Wade.
Michael Roman, one of Trump's co-defendants, alleged that the two had an "improper and clandestine personal relationship" and "have enriched themselves from this case."
Fulton County District Attorney Fani Willis testifies during a hearing on the Georgia election interference case, Thursday, in Atlanta, Feb. 15, 2024. Alyssa Pointer/Pool via AP
Willis and Wade have denied any wrongdoing.
McAfee has not yet ruled on the motion, but said earlier this week: “Because I believe it is possible that the facts alleged by the defendant could lead to disqualification, I believe an evidentiary hearing should be held to establish the record on those central allegations.”
If McAfee were to grant Roman's motion, the case, which currently has no trial date, would come to a standstill.
If Willis were disqualified, her entire office would be too, Copeland added.
[District Attorney Fani Willis admits personal relationship with prosecutor in Trump's Georgia election interference case]
Under a 2022 Georgia law, when a district attorney is disbarred, the case is referred to the executive director of the Georgia District Attorney's Council, who is charged with finding another for the case.
“If Judge McAfee signs an order disqualifying Prosecutor Willis, it is up to me to select and appoint a special prosecutor,” the council's executive director, Pete Skandalakis, told NBC News.
Skandalakis, a former district attorney, mentioned that his office would “start by looking at who has the resources and capacity, not only personnel and experience, but also financial” to handle such a case.
“The larger the case, the greater the expense,” he said.
He would also take into account “geography — who is closest to the location” — and “who has an extremely heavy workload and who has a light one.”
“You're looking for someone who is a neutral arbitrator and can make decisions based on the evidence,” and ideally someone who wants to take the case, Skandalakis added.
“As I read the statute, a prosecutor cannot reject an appointment, but it is best to find someone willing to take on the task,” he mentioned.
In addition to multiple prosecutors' offices, Skandalakis could choose to take the case himself, assign it to the state attorney general's office or name a private attorney as special counsel, but he insisted that financial constraints make the latter option unlikely.
John Floyd III, father of Fulton District Attorney Fani Willis, during a hearing on February 16, 2024 in Atlanta.Pool via Getty Images/Getty Images
“If I appointed a private attorney, the statute requires me to pay the hourly rate of an elected district attorney, which is about $70 an hour, and I cannot pay him to hire an investigator” or other help , he explained.
Skandalakis said whoever takes over the case would be able to use investigative work that has already been completed by the prosecutor's office, but they would also have the ability to do additional work and use — or discard — part or all of the indictment. by Willis.
“We must consider the case as if we were starting from scratch,” he indicated.
[They are investigating whether prosecutors in the Trump interference case in Georgia wasted public funds]
Asked how politics might come into play in his potential search, Skandalakis, a Republican, explained: “I think it would be disingenuous to say that politics is not part of any process, but I'm still looking for someone who can be neutral and can take his decision based on the available evidence.
J. Tom Morgan, a professor at Western Carolina University and former DeKalb County district attorney, noted that any new prosecutor would likely “slim down” the case to make it “a more manageable and prosecutable case.”
The current accusation is “a pig's breakfast, total garbage,” he described.
However, he added, it will take time for the new prosecutor to catch up and then reduce it.
“Ms. Willis’ office has been on this case for two and a half years.”
There could also be other delays.
If Willis were to appeal the disqualification decision, Skandalakis specified that he would postpone the appointment of a new prosecutor until the appeal was resolved.
“If he wins the appeal, it wouldn't make sense for him to name someone and then come back to her, so we would have to wait,” he added.
The disqualification statute does not establish a timetable for action.
Skandalakis assured that there would be no statute of limitations problems since the accused have already been charged.
Copeland mentioned that any prolonged delay could lead to individual demands for a speedy trial.
He added that history does not indicate that the search process for a new prosecutor will move quickly.
In July 2022, Willis was disqualified from investigating Burt Jones, then a state senator running for lieutenant governor, as part of the Trump investigation.
The disqualification came after she organized a fundraiser in support of a Democratic candidate running for the same position.
[The divorce and the alleged romance that put one of the “most dangerous” cases for Trump in check]
That investigation was then sent to the Council of Prosecutors, which has yet to select a prosecutor to continue the investigation into the now lieutenant governor.
“This wouldn't be any faster,” Copeland insisted.
Skandalakis said that case has different issues and court-ordered limitations.
“Both completely different issues,” he explained.