OPINION: This article may contain commentary which reflects the author's opinion.
A recent ruling allows attorneys representing one of the co-defendants in the Georgia case of former President Donald Trump to contend that Fulton County District Attorney Fani Willis exceeded her jurisdiction when she filed election-related racketeering charges against him.
Harrison Lloyd, a former leader of the Black Voices for Trump coalition, was granted a certificate of immediate review by District Judge Scott McAfee.
This allows Lloyd to request a review by the Georgia Court of Appeals. The McAfee decision is unexpected because it goes against earlier decisions invalidating procedural motions to prevent Willis from pursuing specific crimes.
Judge McAfee wrote that he was willing to entertain Lloyd’s argument that Willis’ “election-related” investigation was beyond her jurisdiction.
He has previously argued that she “did not have authority to investigation or presentment authority to bring election-related charges against the Defendant absent a referral from the State Election Board,” according to filings obtained by Law & Crime.
In January, McAfee decided that Willis could pursue charges without requiring a referral from the secretary of state or any other electoral body because he had “concurrent jurisdiction” with the state’s election officials. The Fulton County judge upheld his decision once more in response to Lloyd’s appeal; however, he decided that the most recent motion for a certificate of review was sufficient to merit review by an appeals court.
He wrote earlier this week that the earlier ruling granting Willis jurisdiction is “of such importance to the case that immediate review should be had.”
The Georgia Court of Appeals will now have to investigate whether Judge McAfee correctly applied the law in areas where defense attorneys have a say in conflicts, giving a district attorney the authority to press charges related to elections without having to go through the customary grand jury process.
“It is undisputed that no referral was sought nor granted,” Floyd’s latest motion reads. “Despite this Court’s explanation of ‘harmony’ amongst these statutes, to hold that the District Attorney holds concurrent jurisdiction with the SEB, and that a referral from the SEB to the District Attorney is not necessary in election-related cases, renders O.C.G.A. § 21-2-35 absolutely meaningless and superfluous.”
Lloyd’s attorneys now have 10 days to submit their motion to the appeals court, which will review it and decide whether to grant an appeal after 45 days.
Floyd, one of the few co-defendants of Trump who was unable to post bail in the case, said that his conditions in Fulton County’s jail were more appropriate for a third-world nation than a U.S. jail cell.
DA Willis made headlines again when she said the “train is coming” when speaking about the prosecution of former President Donald Trump and his 14 co-defendants.
Willis, who almost faced disqualification in the previous president’s election subversion case due to her romantic relationship with her former lead prosecutor, has stated that she continued to work on the case during the two months of related court action and that the disqualification effort did not hinder her progress.
Several legal analysts are sounding the alarm about her comments.
Atlanta defense attorney Andrew Fleischman told Salon that Willis “should not” be making those comments.
“Prosecutors announcing at the outset of a case who they’re indicting, the charges being brought and why is fine, but they should not make public statements that have no legitimate law enforcement purpose, even in the context of a political campaign,” Fleischman said.
“They strengthen arguments for gag orders and disqualification, and they harm the public’s trust that this trial is about holding people accountable for crimes they have committed, rather than as part of an overall political strategy,” Fleischman added.
Georgia State University law professor Clark Cunningham made similar comments, telling Salon that Willis’ comments to CNN sounded like “campaign remarks” that “were addressed to an audience of voters for the upcoming primary and general election.”
“Saying that the ‘train is coming’ and implying that the defendants will now get less favorable plea deals because of a motion that was filed seems like it is meant to heighten condemnation of the accused,” Fleischman said.
Fleischman and Cunningham did argue that they do not believe Willis’ comments will likely “have any effect” on the future of the case.
Fleischman added, “On the other hand, the defense may prefer that she keep talking, and may ask to submit clips of her interviews as evidence at trial.”
“I do think that the credibility of the case has taken a terrible hit because of her conduct,” Cunningham said, arguing that the “odor of mendacity” that Judge McAfee wrote in his decision earlier this month remains over the prosecution and “dissipates if she takes a leave.”
