Left: Fulton County District Attorney Fani Willis (AP Photo/Brynn Anderson). Right: Donald Trump (AP Photo/Matt Rourke)
Donald Trump’s latest bid to stop his possible prosecution involving alleged attempts to overturn the results of the 2020 election in Georgia and to disqualify Fulton County District Attorney Fani Willis from investigating him were resoundingly slapped down by a state judge on Monday.
In a nine-page ruling, Fulton County Superior Court Judge Robert McBurney — who also oversees the special grand jury investigation into Trump’s election-related activities there — was particularly pointed and cited several earlier instances where the former president had already been admonished by judges in federal courts for similar attempts.
Trump filed a motion in March asking the Georgia judge to halt the special grand jury’s report recommending his indictment for election-related crimes in Georgia. The former president and his attorneys also sought to have Willis recused from the probe altogether, claiming she was biased and could not divorce her personal opinions about Trump from her professional endeavors.
One of Trump’s so-called “alternate electors,” in the 2020 election, Cathleen Latham, joined his motion to topple the probe and the district attorney.
But in his order Monday, McBurney said their efforts lacked merit, and he emphasized the very simple reason why: Trump and his cohorts cannot stop Georgia prosecutors from continuing their probe because he hasn’t been indicted yet.
Their legal maneuver, the judge said, is much too premature.
Though McBurney acknowledged the “unwelcome and unpleasant experience” Trump may be undergoing as the subject of a “highly publicized criminal investigation,” he nonetheless stressed that “no court has ever held that that status alone provides a basis for the courts to interfere with or halt the investigation.” [Emphasis in original]
“Trump knew this and now Latham does too,” McBurney wrote, citing a Ninth Circuit ruling, Ramsden v. United States, that summarized his point succinctly.
“If the mere threat of prosecution were allowed to constitute irreparable harm, every potential defendant could point to the same harm and invoke the equitable powers of the court,” the 1993 ruling stated.
Any professed injuries by Trump or Latham are “speculative and unrealized” until an indictment occurs. Though they can theorize that an indictment may be imminent, the possibility alone “is not enough to create a controversy, cause an injury or confer standing.”
Claims of “taint” upon the special grand jury or missteps by Willis, the presiding judge or the court are out of line, McBurney found.
“The court appreciates that ‘a wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s [or woman’s] escutcheon is seldom wiped out by a subsequent judgment of not guilty,’… However in this situation, movants’ rather overwrought allegations of prosecutorial overreach and judicial error do not suffice to show that there is a significant risk of a ‘wrongful indictment’ or even a blot on an escutcheon,” the judge wrote.
And in a reference to Trump’s efforts to monetize his position as the figure of a possible indictment, the judge offered a comparison to a fairytale figure of yore.
“[For] some, being the subject of a criminal investigation can, a la Rumpelstiltskin, be turned into golden political capital, making it seem more providential than problematic,” McBurney wrote. “Regardless, simply being the subject (or target) of an investigation does not yield standing to bring a claim to halt that investigation in court.”
Once the picture is more fulsome, like when formal charges are actually brought, then Trump and Latham will have a change to argue their motions more effectively and “reasonably,” McBurney noted.
“Guessing at what that picture might look like before the investigative dots are connected may be a popular game for the media and blogosphere, but it is not a proper role for the courts and formal legal argumentation,” he wrote.
As for Trump and Latham’s attempt to have the special grand jury’s final report “locked away from public view forever,” McBurney said no such “permanent silencing” would be permitted under any reading of statutory or case law.
Assuming they are named in it, the judge said due process rights would then be considered, but for now, the district attorney has been ordered to keep the final report out of the public’s eye until a final charging decision is issued. After that, the court can revisit the question of releasing the remainder of the final report. Until then, Trump and Latham’s request to quash the report are moot.
Willis is expected to recommend charges against Trump and a number of his allies in Georgia who attempted to subvert the results of the 2020 election in August.
Trump has long publicly derided Willis, a Democrat. He has repeatedly slammed her as politically-motivated and has called her probe into his conduct a “witch hunt.” At rallies earlier this year, as he railed against investigations against him brought by prosecutors in New York and Georgia, he called district attorneys “racist” and urged his supports to hold “the biggest protests we have ever had” in cities like Atlanta if prosecutors “do anything wrong or illegal.”
McBurney remarked in his order that Trump’s effort to have Willis, who is Black, unseated from the probe altogether were “bold.”
Cause for removal requires a high bar is met either for “forensic misconduct,” like when a prosecutor improperly expresses personal belief in a defendant’s guilt, or for “conflict of interest,” like when a prosecutor previously represented a defendant for similar crimes or consulted them about those crimes.
McBurney emphasized that none of this had happened in this case.
Yet.
“There is no evidence (or even a contention) that the District Attorney (or any of her many assistants) ever represented Trump or Latham or consulted with them in a professional legal capacity. Nor is there any evidence of any direct financial interest that any member of the District Attorney’s Office has in the outcome of the case, unlike the sole case upon which movants rely: the fractured, inapposite, and unpersuasive opinion in Young v. US,” McBurney wrote.
And as for forensic misconduct, McBurney lit into the former president and the district attorney: both sides, he said, had done enough “talking, posting tweeting (“X’ing”?), and press conferencing to have hit (and perhaps stretched) the bounds of Georgia Rules of Professional Conduct and neither movant has pointed to any averments from the district attorney or her team of lawyers expressing a belief that Trump or Latham is guilty or has committed this or that offense.”
Willis’ work has been “fairly routine,” the judge noted. Further, the “drumbeat” from Willis had been neither partisan nor personal, McBurney wrote.
And this was a “refreshing contrast to the stream of personal invective flowing from one of the movants,” he added.
Read the order from McBurney, below.
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