ATLANTA — Donald Trump is set to take back the White House, and Fulton County District Attorney Fani Willis faces a stark reality: The largest and most historic criminal case Atlanta has ever seen will likely have to go on without its top defendant.
The 98-page indictment filed in Atlanta last year against Trump and 18 of his allies for election interference in 2020 presents a unique threat to the president-elect. He can’t wave away these state charges, nor can he later pardon himself either. Legal experts say Trump seems safe for now. His associates, however, don’t have the Oval Office as legal protection.
Defense attorneys for two indicted Trump allies say they don’t expect Willis to put the case on ice. Why?
“History. Posterity. That’s your answer,” Buddy Parker, a defense lawyer and former federal prosecutor who represents disgraced former Trump lawyer John Eastman, told NOTUS in Atlanta this week.
Trump’s resounding victory at the polls saved him — and only him — from the clutches of this local prosecutor, these lawyers say. And Parker thinks that, despite the extensive authority bestowed on a president, there’s little Trump can actually do to interfere with the prosecution of some of his closest allies.
“There wouldn’t be any other legal barriers … Trump can’t do anything about it as president. He can’t stop it. He can’t cause it to be dismissed,” Parker said.
“Trump is in a totally different category now than anybody else that’s under indictment,” he added. “It’s significant for Trump himself. It’s not a game changer for the rest of the defendants, because she can still try them.”
Willis’ office declined to comment on Friday. But the Fulton County district attorney has a reputation for keeping the course, even if cases drag on for years with little to show.
“I don’t think she’ll ever concede on any point. There’s just too much publicity brought to the district attorney’s office based on this case,” Manny Arora, a former Fulton County prosecutor, who is representing Kenneth Chesebro, said. “Heck, it’s been four years, and there’s not even a trial date in sight.”
Chesebro pleaded guilty in Atlanta to being involved in the Trump scheme to create an alternate slate of electors who tried to overturn the 2020 election.
Arora cited Willis’ attempt to take down the rapper Young Thug, a yearlong saga that The Atlanta Journal-Constitution dubbed the “never-ending trial,” as why he believes the case will live on.
“I don’t think economic realities phase this DA’s office at all. Just look at the case against the musician after two years … this trial’s going nowhere. I would just point to the YSL/Young Thug case. They just can’t seem to get out of their own way to prosecute anybody. But they will make a lot of noise,” Arora said.
Willis secured her own reelection this week. Her office has come under fire over its inability to properly navigate massive criminal cases. The Trump case is on hold, in part, over her sexual affair with a prosecutor she personally hired and oversaw — something that Judge Scott McAfee used to openly question her professionalism and led to calls to disqualify her from the case, a matter that’s now under review by the state’s appellate court.
According to lawyers who monitor the Atlanta prosecution, the most likely scenario is that a trial will proceed without Trump perhaps next summer — meaning that the first stretch of the second Trump presidency will receive a nasty interruption. Then again, there’s no telling yet how a relentless DA will be perceived.
“That’s the biggest and hardest question,” Anthony Michael Kreis, who teaches law at Georgia State University, said. “On the one hand, there will be people who see this as an existential necessity in order that the rule of law be maintained. And there will be others who see this as a circus and illegitimate.”
Continuing the case against more than a dozen of Trump’s closest allies poses difficulties of its own. It’ll take just as much work to prosecute Trump’s allies as it would Trump.
So then, why would she do it?
“She may see real vindication by prosecuting the remaining defendants,” Kreis said.
First, Willis will have to overcome several legal challenges that are currently making their way through the state’s higher courts. Georgia’s Supreme Court could soon decide whether the fake electors are somehow beyond the DA’s reach because of the nature of their role in federal elections. It’s a question that will touch on the so-called “supremacy clause” of the U.S. Constitution that says federal law takes precedence over state law. Plus, a mid-level appellate court will determine whether Willis’ intimate relationship with a direct report constituted a genuine conflict of interest.
All eyes will be on a Dec. 5 appellate court hearing, where the DA’s stance will be seen as a good indication of how she’ll proceed with the rest of the case.
“If the appellate courts of Georgia give the green light to prosecute, Willis will try the case. That’s my belief. Now, if Willis is recused, nobody else in Georgia’s going to try the case,” Parker said. “I don’t see her backing down.”
If the case survives the next few months of appellate challenges, the local prosecutor may still have to reformulate her case to adapt to the Supreme Court’s decision last year granting an extensive definition of presidential immunity to anything that goes on in the White House — much the same way that Justice Department special counsel Jack Smith had to supersede his indictment in D.C. Even then, Trump would still be out of reach while he remains in the Oval Office.
“She’ll have to sort through whether this just gets held until 2029,” Kreis said. “We’re in such strange and uncharted territory nobody has the answer for that.”
There are four ongoing cases that have dogged Trump even as he won the presidential election this week. The other three are the felony conviction over fake business records in New York, a federal indictment over election interference in the District of Columbia and a dismissed federal indictment on appeal in Florida about mishandling classified records.
Most of those are expected to vanish by Inauguration Day in January. The upcoming criminal sentencing in Manhattan this month will end that case, and Smith on Friday indicated in court documents that he is winding down his D.C. cases.
That leaves the one in Atlanta, where Trump can’t simply pardon himself because of the nature of the state-level charges. Then again, close watchers are clear-eyed: Going after Trump would be a fool’s errand.
“I think she’d be categorically insane to try to press this issue and try him while he’s in office. She’s smarter than that,” Kreis said.
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Jose Pagliery is a reporter at NOTUS.