Fulton County District Attorney Fani Willis is scheduled to take the witness stand during a hearing in the State of Georgia v. Donald John Trump case at the Fulton County Courthouse on February 15 in Atlanta. Photo: Alyssa Pointer-Pool/Getty Images

A Georgia Court of Appeals hearing scheduled for Dec. 5 on the latest development in racketeering charges against President-elect Donald Trump and his Fulton County allies remains on track despite the results of last week’s presidential election.

The state appeals court is set to hear arguments Dec. 5 on a petition by the former Republican president and several co-defendants seeking to remove Fulton County District Attorney Fani Willis from the 2020 presidential election meddling case. The amount of uncertainty of grown around the future of the case after Trump’s decisive victory over Vice President Kamala Harris in the November 5 presidential election.

Legal experts said they expected the appeal hearing to stay on schedule as the court considered a petition to disqualify Willis because of a past romantic relationship with the special prosecutor he hired to lead the case.

Questions remain about the felony racketeering case against Trump and his 14 co-defendants, mostly on hold pending a ruling on the appeal.

A US Justice Department precedent dating back to the Watergate era holds that the federal law enforcement agency cannot prosecute a sitting president.

Georgia State University law professor Anthony Michael Kreis said the options for Willis are to drop the charges against Trump and proceed against the other defendants or find another legal mechanism or wait until he leaves office Trump in 2029 before resuming the case against the sitting president.

Any possibility of Trump’s case not being prosecuted until 2029 would likely be the result of negotiations or a court order, Kreis said.

“While Donald Trump cannot be tried while in the White House, there is nothing stopping Fani Willis from pursuing charges against everyone else,” Kreis said. “That second option is not clear how it works because we generally don’t let charges stay in abstinence for four years.”

Former Gwinnett County District Attorney Danny Porter agreed that Willis’ ability to continue to prosecute Trump is severely limited in the wake of the election.

“I don’t realistically see it after Trump and the co-defendants,” he said. “Her options for me are to dismiss the entire case no. 1 or no. 2, to try the co-defendants and leave Trump for another day or not at all.”

Porter said Willis could successfully stall the case until Trump leaves office, even if Trump’s lawyers argue that she is denying him his right to a speedy trial. Porter is not optimistic about Willis’ chances of surviving the next appeals court decision, which is expected in 2025.

“I think just looking at the way the wind is blowing, I think it’s going to be pretty hard for her not to get challenged,” Porter said. “I don’t think it’s going to go into a friendly court.”

Trump and 18 others were indicted in August 2022 for allegedly conspiring to overturn the results of the 2020 presidential election. President Joe Biden’s victory in Georgia has been upheld by multiple recounts and audits, and all court challenges to his victory have been unsuccessful.

Four people have already pleaded guilty to misdemeanor tampering in the Fulton election case. Their plea agreement requires them to testify against Trump and the other 14 remaining defendants.

If Willis is disqualified, then the case will be sent to the Georgia Board of Prosecutors for the appointment of a new prosecutor.

The appeal came from Trump and co-defendants, including former Trump campaign officer Michael Roman, former Trump lawyer Rudy Giuliani and former White House chief of staff Mark Meadows. On Tuesday, the U.S. Supreme Court rejected a petition by Meadows seeking to move his charges from state to federal court.

The Georgia Court of Appeals disqualification hearing will take place whether or not Trump is a party to the case, Kreis said.

“That’s going to happen no matter what because most of the co-defendants joined the appeal,” Kreis said. “Whether or not Trump is one of the defendants, the issue is still alive.”

Georgia state senators assert subpoena power after Fulton prosecutor skips investigative hearing

Republican officials’ push for Willis to drop the case intensified in the days following last week’s election. Alpharetta Republican state Sen. Brandon Beach said Friday it’s time to turn down the heat on politics while calling for an end to the Fulton election interference case.

“The American people cast a historically significant vote in favor of the strong leadership that Donald Trump brings to the White House, signaling a rejection of politically influenced legislation,” Beach said in a statement. “Fulton County District Attorney Fani Willis should follow the lead set by the Department of Justice and Special Counsel Jack Smith by immediately dismissing the criminal charges against President Trump and other innocent people in Fulton County.”

The Nov. 5 general election also resulted in Willis easily winning a second term as top prosecutor in the Democratic stronghold of Fulton County. If the high-profile election meddling case fails, Willis’ decision to pursue the investigation in the first place could come under closer scrutiny.

“There’s an old saying that if you’re reelected, you have a honeymoon period of about six months,” Porter said. “If you make a controversial decision, you have three and a half years for the public to forget it. I think probably if he’s going to dismiss the case, then he should do it fairly early.”

Trump’s federal cases have hit a stumbling block

When a Fulton County grand jury indicted Trump and 18 others on racketeering and conspiracy charges in August 2023, it was the fourth case that year to bring criminal charges against Trump.

A federal election interference case against Trump now it seems to end after special prosecutor Jack Smith asked a federal judge on Friday to suspend deadlines in the case after Trump’s election.

Attorney General Merrick Garland appointed Smith in November 2022 to oversee federal investigations into Trump over his connection to the January 6, 2021 breach at the US Capitol and classified documents stored at Trump’s Mar-a-Lago estate in Florida.

Trump has said publicly that after his January 20 inauguration he would promptly fire Smith, who has accused Trump of illegally trying to overturn the 2020 election and allegedly mishandling classified documents.

Prosecutors have appealed a Florida judge’s decision to dismiss charges against Trump that allege he illegally removed classified documents from the White House.

In another case, a New York judge said Tuesday he would rule next week on whether Trump had presidential immunity that should have protected him from being convicted of falsifying business records by a jury in this spring. A July US Supreme Court decision says presidents have immunity from criminal charges for acts committed in their official capacity.

The Trump legal case in New York is on hold as the prosecution studies the effect of the presidential victory

Trump is scheduled to be sentenced Nov. 26 on 34 counts of falsifying business records related to hush money payments promised to adult film star Stormy Daniels during the 2016 presidential campaign.

Kreis said there is legal justification for prosecuting Trump’s co-defendants, even though a president is legally shielded from criminal charges.

“I think you could make a strong case that it’s essential that people who are subordinates and allies know that they will be prosecuted for their crimes if they aid a president in illegal behavior,” he said.

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