Defense attorney brings on the heartache to MSNBC host ahead of Fani Willis disqualification decision

Already reeling from Fulton County Judge Scott McAfee’s decision to strike down six counts in the Georgia election interference case against former President Donald Trump and his 18 co-defendants on Wednesday morning, MSNBC host Ana Cabrera had no idea another shoe was about to drop in the afternoon.

During an interview with federal criminal defense attorney and legal analyst Caroline Polisi, Cabrera wondered out loud – hopefully – if McAfee’s decision to toss those charges might mean he was planning to keep District Attorney Fani Willis on the case.

It was then that Cabrera’s hopes were dashed for the second time. Polisi told her there was no relationship between McAfee’s dismissal of the charges and his decision to disqualify Willis from prosecuting the case. “These are completely distinct legal issues,” she noted.

Moreover, to Cabrera’s chagrin, Polisi was very clear that Willis’s disqualification could be a “death knell” for the case. McAfee’s “decision on the disqualification … does not kill the case in and of itself. He wouldn’t dismiss the indictment. It would just be reassigned to sort of a governing body in Georgia to then be reassigned.”

But, if this were to happen, Polisi said, “I myself feel, and many other people feel that that would, in effect, essentially be the death knell for this case because, uh, you know, another time when Fani Willis was, um, removed from a case for ­– in this very case – for a conflict of interest, that case is still languishing at that body.”

“I don’t know that there are many other prosecutors in the state of Georgia that would want to take on this case, that have the resources, the expertise,” she said. “And so, this, you know, could be sort of death by a thousand cuts for this case.”

Polisi is correct that there would be few prosecutors who would care to prosecute this case. Although Fulton County, which encompasses Atlanta, is blue, and there are blue areas surrounding the cities of Columbus, Savannah, and Augusta, the rest of the state is largely red. And few district attorneys in those areas would be interested in pursuing a RICO case against Trump.

If McAfee removes Willis from the case, she will most likely appeal the decision. According to the Washington Post, “the case against Trump would almost certainly be delayed if not scuttled altogether. It would fall to a state panel called the Prosecuting Attorneys’ Council of Georgia to identify a new prosecutor to take on the case. That could take months or even years. The new prosecutor would have sole discretion on whether to proceed with the case.”

If McAfee decides to retain Willis, Trump and his co-defendants would appeal the decision. But Willis’s case against them would continue during the appeal process.

In the meantime, a Georgia state Senate committee has opened an investigation “to determine if Willis violated ethics rules or state laws.” Republican state Sen. Bill Cowsert, chairman of the committee, told CNN on Wednesday that lawmakers are trying “to determine whether there has been improper behavior, whether it’s been financial irregularities, and whether state laws have been broken.” (The Republican party controls both chambers of the state legislature.)

On Wednesday, Georgia Gov. Brian Kemp, a Republican, signed legislation that will create a commission to investigate local prosecutors for misconduct. Kemp said, “This legislation will help us ensure rogue or incompetent prosecutors are held accountable if they refuse to uphold the law.”

Although it was left unsaid at the bill signing ceremony, local television station WSB-TV Atlanta reminded viewers this commission could be used to investigate Willis.

Between McAfee’s imminent ruling, the state Senate investigation and the new state commission, Willis is certainly feeling the heat. And, unfortunately for the beleaguered district attorney, this case already appears to be tainted beyond repair.

But leave it to the Democrats to apply a little pressure of their own. Last week, it was reported that Judge McAfee, who is running for a full four-year term in May, will face an unexpected challenge from Atlanta civil rights attorney and talk radio host Robert Patillo. According to Fox News, he is the “former executive director of the Rainbow PUSH Coalition, the social justice and civil rights group founded by Rev. Jesse Jackson.”

Let the games begin.

 

A previous version of this article appeared in the Washington Examiner.

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