An intermediate appellate court in Georgia ruled this week that Fani Willis, a county prosecutor, and her office should be disqualified from personally pursuing the criminal action pending against Donald Trump and a slew of other defendants, on the basis of the "appearance of impropriety" by her and her office. In a two-to-one decision reversing the trial court's ruling that there was no basis to take action, the appellate court ruled that the prosecutor and her entire office "had no authorization to proceed" against Trump.
The appellate court did not find any actual impropriety on the part of the prosecutor or her staff. It only noted the "appearance" of an impropriety that might appear to "some." Additionally, it held that the ruling would not apply to any normal case but existed only because of Trump's particular circumstance as a candidate for the office of President.
Trump had argued that a sexual relationship existed between the prosecutor and the local attorney she had designated to try the case, and that the two had spent an exorbitant amount of money in their relationship. Trump argued that this was sufficient to justify the prosecutor's recusal. The trial court disagreed and denied the application, but the appellate court reversed, concluding that although there were no instances of actual improprieties shown, the appearances were sufficient to warrant the prosecutor's dismissal.
The prosecutor stated she intends an immediate appeal. But if so, it is highly unlikely that any decision on review will occur between now and the time Trump is to be sworn into office as President. Once he is sworn in, substantial statutory and regulatory rulings clamp on preventing any further action by any of the lower courts in Trump's cases. The Supreme Court's ruling in other cases that a sitting President is immune from any federal criminal prosecution while in office will most probably be sufficient to derail all proceedings against Trump in state courts as well. Meaning Trump will be insulated from any criminal action in any court throughout his presidency.
Notwithstanding all of this, the appellate ruling in the Georgia case is plainly wrong. The ruling pertained to allegations of a personal relationship between the prosecutor and another, and to her alleged misuse of state funds in the process. A defendant in a criminal case has no standing to raise or complain about such instances in the criminal case. The appropriating government entities, either state or local or both, that oversee the funds supplied to the prosecutors' offices can audit the finances of a prosecutor's office and take action if the prosecutor over-spends or mis-spends public funds. A lone individual caught up in the criminal system has no standing to sue in such matters. Further, most state rules providing for the disqualification of an attorney based upon a prohibited relationship with another lawyer require that the relationship be with an opposing party's attorney but not one associated on the same side as the target. In any such action by the state or county agency overseeing the prosecutors' offices, a mere appearance or possibility of a such a connection might be sufficient for recusal, but in the case of an objection being advanced by the defendant in a criminal case, the showing of actual prejudice or harm resulting from the existence of the alleged relationship is usually required. None of these expected requirements were met in the instant case.
All privileges and special protections extended to a President only operate for presidential actions taken after the candidate is elected and while in office. Here, none of Trump's criminal actions alleged in the action in Georgia related to the office of President. The nexus of the crimes charged were Trump's actions as a potential candidate for election to the office of President, and for alleged wrongs during the campaign, but not for any action or inaction by Trump while he was acting in service as the elected President. It would make no difference in deciding the issue of Presidential immunity whether the candidate was seeking office for the first time or was already the President seeking re-election. If the actions under examination pertained entirely to the candidate's campaign for office, they should not have been subjected to any defenses or privileges existing to the office holder. There are no statutory exceptions protecting a candidate for office, and no demonstrated factual basis for the creation of any judicial prerogatives.
The upshot of all this is that the action by the intermediate appellate court was wrong, but it may be too late in this case for any corrective action by a higher court. Action in other cases indicate that all issues raised in federal courts that might have prevented Trump from running for office have been mooted. Sentencing in the federal case against Trump pending in New York which found him guilty of fraudulent misconduct, was stayed pending the election. Two federal court actions in the District of Columbia and Virginia, were dismissed by the special prosecutor Jack Smith, citing a Department of Justice written policy not to pursue any case against a sitting president. With these rulings and actions in place, the expectation would appear to be that no matter what the outcome of the current Georgia case finally is, it, too, will be stayed and all of Trumps's criminal case problems will be washed away for the duration of his current presidency.
While some of the actions will remain over his head, and the cases Jack Smith was pursing might be refiled later, there is no action now pending that will interfere with the proceedings to inaugurate him into office on January 20, 2025, or that will interfere in any way during his term once he assumes office.
The twists and turns occurring in Trump's political career continue to astonish, and every indication is that it is not over yet.
I am convinced of that, so pay attention.
