Donald Trump could sue Fani Willis for defamation, legal expert says

Fulton County District Attorney Fani Willis could potentially see the tables turned with former President Donald Trump bringing a lawsuit against her.

That’s the view of one legal expert who told Newsweek that, following a decision by the judge in Trump’s election fraud case in Georgia, the presumptive 2024 Republican nominee could sue Willis for defamation.

“Judge McAfee held that ‘an odor of mendacity remains,’ which essentially impeaches the credibility of Willis and Wade,” attorney Colleen Kerwick told Newsweek, referring to prosecutor Nathan Wade who had a romantic relationship with Willis.

“Judge McAfee also held that Fani Willis casting ‘racial aspersions at an indicted defendant’s decision to file this pre-trial motion’ was ‘wading further into dangerous waters.’ Trump could sue her for defamation, but would have to overcome quasi immunity for it to survive dismissal,” Kerwick added.

According to the New York-based attorney, Georgia’s 1983 constitution declares that “district attorneys shall enjoy immunity from private suit for actions arising from the performance of their duties.”

“The rationale behind this immunity is that prosecutors, like judges, should be free to make decisions properly within the purview of their official duties without being influenced by the shadow of liability,” Kerwick told Newsweek.

“The determining factor appears to be whether the act or omission is intimately associated with the judicial phase of the criminal process,” she added.

Last week, Judge Scott McAfee decided that Willis could stay on the case she brought against Trump as long as Wade was dismissed. The other option was that the D.A.” along with the whole of her office” could step aside. It was Wade who exited, but McAfee’s comments about Willis are “pretty damning” according to Kerwick.

In a speech at an Atlanta church on Martin Luther King Jr. Day in January, Willis seemed to suggest racial overtones that McAfee addressed in his decision last week.

“In these public and televised comments, the District Attorney complained that a Fulton County Commissioner ‘and so many others’ questioned her decision to hire SADA Wade. When referring to her detractors throughout the speech, she frequently utilized the plural ‘they.’ The State argues the speech was not aimed at any of the Defendants in this case. Maybe so. But maybe not. Therein lies the danger of public comment by a prosecuting attorney,” McAfee wrote.

“More at issue, instead of attributing the criticism to a criminal accused’s general aversion to being convicted and facing a prison sentence, the District Attorney ascribed the effort as motivated by ‘playing the race card,'” the judge wrote. “She went on to frequently refer to SADA Wade as the ‘black man’ while her other unchallenged SADAs were labeled ‘one white woman’ and ‘one white man.’ The effect of this speech was to cast racial aspersions at an indicted Defendant’s decision to file this pretrial motion.”

“The Court cannot find that this speech crossed the line to the point where the Defendants have been denied the opportunity for a fundamentally fair trial, or that it requires the District Attorney’s disqualification,” the judge wrote. “But it was still legally improper. Providing this type of public comment creates dangerous waters for the District Attorney to wade further into.

“The time may well have arrived for an order preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial,” he added.

In his response to McAfee’s ruling, Trump’s attorney, Steve Sadow, brought up Willis’ church speech.

“While respecting the court’s decision, we believe that the court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade, including the financial benefits, testifying untruthfully about when their personal relationship began, as well as Willis’ extrajudicial MLK ‘church speech,’ where she played the race card and falsely accused the defendants and their counsel of racism,” Sadow said. “We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place.”

Frieda Powers

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