Will Trump election fraud trial come before election? Fani Willis and defense lawyer clash

District Attorney Fani Willis, in her first public comments since avoiding being disqualified in the Georgia election fraud prosecution of Donald Trump, said she is ready to bring the former president and 14 co-defendants to trial well before the Nov. 5 election.

“The train is coming,” Willis said in a weekend interview with CNN.

Prominent Georgia defense lawyer Ashleigh Merchant, who first disclosed Willis’ romantic relationship with special prosecutor Nathan Wade back in a bombshell Jan. 8 court filing, says not so fast.

“We’re ready,” Merchant said Monday in response to Willis’ comments at a charity Easter egg hunt Saturday in Atlanta.

But Merchant, who represents one of Trump’s 14 co-defendants in the election subversion case, said in an interview Monday that an appeal of a judge’s ruling rejecting Willis’ disqualification likely will take many months and will push the trial back well past the November election that likely will pit Trump against President Joe Biden. She represents Trump 2020 campaign official Michael Roman, who is charged with conspiring with local Trump supporters in Georgia and Washington, D.C. to overturn the election Trump lost to Biden in the Peach State in 2020.

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More:Fani Willis thrown off Trump case? Election fraud charges dismissed? A look at the key Georgia case

Where the Trump election case stands now

In their Jan. 8 court motion, Roman and Merchant alleged that Willis created a professional conflict of interest by hiring the private lawyer Wade to oversee the sweeping election case and having an affair with him. They also alleged Willis had committed financial misconduct by going on vacations with Wade using some of the more than $650,000 he earned overseeing the case.

Both Willis and Wade denied those allegations and said they committed no wrongdoing. Fulton County Superior Court Judge Scott McAfee ruled March 15 that Willis could stay in charge of the election fraud case but only if Wade stepped down. He did so hours later.

Days later, McAfee allowed Trump and at least eight other co-defendants to take an emergency appeal of his ruling to the Georgia state Court of Appeals. The defense lawyers, including Merchant and Steven Sadow for Trump, not only want Willis and her entire office thrown off the case, but the charges dismissed altogether, as some of them petitioned in their initial court motions back in January.

Why Willis thinks the trial could still go before Election Day

In her exclusive interview with CNN on Saturday, Willis acknowledged that the election racketeering case against Trump and the others was clouded by more than two months of legal wrangling over the motion to disqualify her. That included explosive − and unproven − allegations by Roman’s defense team and others that Willis and Wade began their affair long before she hired him to oversee the case in November 2021 and then lied about it under oath in order to preserve the case and their lead roles in it.

McAfee held nearly three full days of evidentiary hearings the issues before issuing his much-awaited ruling that defense lawyers had failed to prove that Willis had a conflict of interest. But the Republican-appointed judge sharply criticized Willis, saying she had created the “significant appearance of impropriety that infects the current structure of the prosecution team” by having a romantic relationship with Wade. McAfee also said Willis and Wade had severely damaged their credibility while on the witness stand, and that “an odor of mendacity remains” due to “reasonable questions” over whether they had “testified untruthfully about the timing of their relationship.”

Through it all, however, Willis and her team never stopped working on the underlying case. No trial date has been set and Willis said there’s no reason to delay it.

“No, my team has been continuing to work” on the case and “all while that was going on we were writing responses and briefs. We were still doing the case in the way that it needed to be done,” Willis said. “I don’t feel like we’ve been slowed down at all. I do think that there are efforts to slow down this train, but the train is coming.”

Lawyers for Trump and the other defendants have 10 days from McAfee’s ruling to file an appeal. Then the Georgia appellate court has 45 days to decide whether to even hear the appeal.

If the appeals court agrees to hear the case, it could potentially disqualify Willis and the entire Fulton County district attorney’s office − or it could order other fixes, or uphold McAfee’s ruling and allow the case to go forward.

Why a Trump co-defendant’s lawyer thinks no trial will occur before the election

Merchant, speaking on Fox News, said that the Georgia Court of Appeals could rule that Willis is disqualified and that a new prosecutor − or prosecutor’s office − must now step in.

Or, she said, “They can send it back and say ‘Judge McAfee, you actually made some errors. We think the actual, you know, improprieties here is enough’ and tell him to go ahead and fix it,” Merchant said. “Or they could say ‘we’re not going to decide this,’ and then it’s going to go up to the Supreme Court” on an appeal of the appeal.

“It’s not going to be decided quickly. It’s going to take at least a couple of months for this to work its way through the system to determine whether or not she actually is disqualified,” Merchant said.

As a result, Merchant said, “I don’t see any way that this could happen before the election. I mean, the appellate process takes about six months, once it’s initiated, and we’re not even there yet. We’re still early on in the stages. So I don’t see how it can happen that quickly.”

Merchant also accused Willis of filing a case that was “”extremely overbroad,” and said she and other defense lawyers were likely to contest numerous aspects of the prosecution. “And so, no trial is going to happen or be resolved before the election,” she said.

What the judge himself has said

In his ruling approving the appeal, McAfee said that “unless directed otherwise by an appellate court,” he will allow some aspects of the case to move forward.

“The Court intends to continue addressing the many other unrelated pending pretrial motions,” McAfee wrote, “regardless of whether the petition is granted Fulton County Superior Court.”

Clark Cunningham, a professor of law and ethics at Georgia State University College of Law, told USA TODAY that there’s a chance the Court of Appeals will not take the case, given what he says is its history of deferring to the judgement of the initial judge in question.

Either way, he said, whoever loses almost certainly will appeal to the Georgia Supreme Court, making it even less likely that Trump and others will sit before a jury before Election Day.