Superior Court Judge Scott McAfee said Monday that he would continue consideration of some pretrial motions in the Fulton County election interference case even as an appeals court mulls whether to disqualify District Attorney Fani Willis from the prosecution.
Last week, the Georgia Court of Appeals issued a stay on the lower court’s work until it decides whether Willis and her office should be removed from the case. But in a two-page order, McAfee said he believed he could continue working his way through pending requests from the six case defendants who are not participating in the appeal.
McAfee wrote that he “does not believe a complete stay is the most efficient course.” He added that any party who disagrees “is welcome to seek clarity directly with the Court of Appeals.”
After the appeals court order, the Georgia case seemed to be in limbo until at least this fall. McAfee’s response suggests that he will try to push through at least some of the pending issues before him, though the overlapping nature of much of that work may complicate his efforts.
McAfee’s order seems to affect defendants John Eastman, Ray Smith, Shawn Still, Stephen Lee, Trevian Kutti and Misty Hampton. Nine other defendants, including former President Donald Trump and former White House Chief of Staff Mark Meadows, have signed onto the disqualification appeal.
A three-judge panel on the appeals court is considering whether to remove Willis and her office from the racketeering case because of her romance with Nathan Wade, the outside attorney she hired as a Trump special prosecutor. The court is also weighing an appeal from the DA’s office, which wants to reinstate six of the criminal counts in the indictment that McAfee had dismissed.
McAfee’s order on Monday came in response to a motion from Hampton asking him to stay the proceedings in her case. Her attorney, John Monroe, argued that since Willis may end up being removed, as “a matter of judicial economy, it does not make sense to stay some of the prosecutions, but not all, in the same case.”
But McAfee, who recently won a full, four-year term on the bench, said that absent a complete dismissal of the case, the indictment will still be in place even if Willis is disqualified. That leaves “several statutory and constitutional challenges awaiting resolution — many of which are fully briefed, argued and may also benefit from appellate review.”
The judge said Hampton could renew her request once all pretrial motions are resolved.
A Willis spokesman declined to comment.
Among the requests still pending before McAfee are defense motions to strike the racketeering count from the indictment, which all the remaining defendants face; challenges related to the Constitution’s Supremacy Clause and double jeopardy; and a push to change the venue of the trial for jury selection.
Early on Monday, Trump’s Atlanta legal team asked the appeals court to hold oral arguments on the Willis disqualification push. If the judges agree, they are expected to hold a live-streamed hearing this fall and issue their decision before a mid-March deadline.
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