Case A24A1599 Filed 06/20/2024 Page 1 of 9

IN THE COURT OF APPEALS

STATE OF GEORGIA

DONALD JOHN TRUMP :

Appellant - Defendant, : INTERLOCUTORY APPEAL
:
vs. :
: Docket Number: A24A1599
STATE OF GEORGIA :
Appellee - Plaintiff. :
:
__________________________________________________________________

PRESIDENT TRUMP’S RESPONSE OPPOSING THE STATE’S MOTION

TO DISMISS APPEAL
__________________________________________________________________

Pursuant to Court of Appeals Rule 41 (d) and O.C.G.A. § 5-6-48 (b), President

Trump and the interlocutory Appellants respond in opposition to the State’s June 12,

2024 “Motion to Dismiss Appeal as Improvidently Granted.” In support of their

joint position that the motion must be denied, President Trump shows the following:

INTRODUCTION

Without citation to any applicable authority, the State filed this “Hail Mary”

motion to dismiss these meritorious appeals, accusing this Court of “improvidently”

granting interlocutory review. There is no proper procedural vehicle for the State to

relitigate this Court’s sound decision to hear the merits. The State’s attempt to do

so conflicts with applicable statutes and this Court’s Rules.

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In its desperate bid to avoid disqualification of a deeply conflicted District

Attorney who has engaged in – and continues to unapologetically engage in 1 –

extrajudicial forensic misconduct, the State argues that the trial court’s factual

findings were not clearly erroneous. According to the State, then, this Court is

powerless to overturn the trial court’s order denying the dismissal of the case and

the disqualification of District Attorney Willis and her office. Of course, as this

Court well knows, that has never been, and is not now, the law.

As the “Joint Application for Interlocutory Appeal” made plain, the vast

majority, if not all, of the issues raised in these appeals are issues of law, not fact,

which this Court reviews de novo.2 Most of the issues on appeal involve the trial

court’s misinterpretation or misapplication of legal standards, not the trial court’s

1
See FULL FANI WILLIS SPEECH!, at 22:00-32:12,
https://www.youtube.com/watch?v=Epl9HaVBDd8 (last visited June 17, 2024).
2
See e.g., Welcker v. Ga. Bd. of Examiners of Psychologists, 340 Ga. App. 853, 856
(2017) (quoting Murray v. Murray, 299 Ga. 703, 705 (2016) (“[U]nder the abuse of
discretion standard, ‘[this Court] review[s] … legal holdings de novo, and [it]
uphold[s] … factual findings as long as they are not clearly erroneous, which means
there is some evidence in the record to support them.” (ellipses in original)
(emphasis added)); State v. Randle, 331 Ga. App. 1, 4 (2015), aff'd, 298 Ga. 375
(2016) (same); Williams v. State, 356 Ga. App. 19, 28 (2020) (abuse of discretion
occurs where a ruling misstates or misapplies the relevant law) (citation and
punctuation omitted.). Notably, the State’s motion omits reference to the fact that
the trial court’s order signaled uncertainty as to the correctness of its application of
the law, particularly in the forensic misconduct context. [R. at 1629].

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factual findings, many of which actually favor Appellants and undermine the State.3

For those reasons, the State’s focus on the “clearly erroneous” standard is largely

irrelevant to the matters for litigation in these appeals. 4 Simply stated, the State’s

motion is a calculated, disingenuous attempt to mislead this Court for the obvious

purpose of preventing interlocutory appellate review of the District Attorney’s

misconduct.

Both the trial court, in granting the certificate of immediate review, and this

Court, in granting the interlocutory application, have already determined these issues

are critical. The trial court’s error in declining to disqualify the District Attorney

and her office, under these circumstances, is a structural error that would, if left

uncorrected by this Court, fatally infect all subsequent proceedings and require later

3
In its 17-page diatribe in support of their clearly erroneous standard, the State also
ignores that there are several factual issues upon which the trial court expressly
declined to make definitive findings, including whether the DA Willis and SADA
Wade committed perjury in their testimony. [R. at 1627-28] (“This Court is not
under an obligation to ferret out every instance of potential dishonesty from each
witness . . . .”).
4
Even if the issues on appeal did involve the clearly erroneous standard, the State’s
argument that this fact requires this Court not to hear the appeal is nonsensical. The
clearly erroneous standard is, by definition, a standard of review to be applied on
appeal; the fact that a case may invoke or involve that appellate standard is no reason
to deny review under this same appellate standard. Equally obvious, while the
clearly erroneous standard is more difficult to satisfy than the de novo standard for
legal issues, it is a standard of review on appeal for a reason: this Court is
empowered to, and does, reverse a trial court’s findings when, after hearing the
merits, it determines that trial court’s factual findings are clearly erroneous.

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reversal of any obtained conviction—all at great wasted time and expense to the

courts, the parties, and the taxpayers. This Court’s decision to grant the interlocutory

application was sound, responsible, and appropriate. The motion should be denied.

ARGUMENT AND CITATIONS TO AUTHORITY

I. The State’s thinly veiled attempt to request reconsideration of the

Interlocutory Application is contrary to governing law and premature.

Without citation to any applicable statute, case,5 or court rule, the State’s

motion seeks dismissal of the interlocutory appeals granted by this Court prior to a

full briefing on the merits. But, under O.C.G.A. § 5-6-48 (b), “[n]o appeal shall be

dismissed or its validity affected for any cause nor shall consideration of any

enumerated error be refused,” except:

(1) For failure to file notice of appeal within the time required as
provided in this article or within any extension of time granted
hereunder;

(2) Where the decision or judgment is not then appealable; or

(3) Where the questions presented have become moot.

None of these subsections apply: there is no dispute that Appellants’ notices

of appeal were timely filed within ten days of this Court’s order granting the

interlocutory application; the appealed order (the trial court’s March 15, 2024 “Order

5
The “string” citation on pages two and three of the State’s motion does not provide
any authority for the State’s filing of this motion. Instead, these cases merely
reiterate the well-known “clearly erroneous” standard of review for appellate
challenges to factual findings.

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on the Defendants’ Motions to Dismiss and Disqualify the Fulton County District

Attorney”) is appealable per this Court’s May 8, 2024 order granting interlocutory

review, and the questions presented are certainly not moot (nor can or does the State

contend that they are). O.C.G.A. § 5-6-34 (b). See Ga. Ct. App. R. 41 (d).

Consistent with the Code, Rule 41 (d) provides only “lack of jurisdiction” as

an appropriate ground to dismiss an appeal. See Ga Ct. App. R. 41 (d); accord

O.C.G.A. § 5-6-48 (b). The State’s motion does not (and could not) challenge

appellate jurisdiction, 6 and “improvidence” is not listed as a basis for dismissal in

either the Code or Rule 41.

While this Court has, on rare occasions, dismissed interlocutory and

discretionary appeals for improvidence sua sponte, it has only exercised this

authority after full briefing on the merits and with the benefit of oral argument, if

granted.7 See, e.g., Woody v. State, 247 Ga. App. 684 (2001) (“[U]pon consideration

of the entire record, applicable case law and statutory provisions, this discretionary

appeal is hereby dismissed as having been improvidently granted.”); Leigh v. State,

6
Because Appellants properly followed the interlocutory procedures set forth in §
5-6-34 (b), appellate jurisdiction was properly conferred. Cf., Duke v. State, 306 Ga.
171, 173 (1) (2019) (collecting citations for the proposition that an application that
fails to follow the § 5-6-34 interlocutory procedure is ineffective to confer appellate
jurisdiction).
7
On June 10, 2024, President Trump timely requested oral argument. As of this
filing, the request remains pending.

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217 Ga. App. 583, 584 (1995) (dismissing interlocutory application sua sponte for

motion to suppress after briefing and oral argument). Obviously, at this point,

neither briefing nor oral argument has occurred.

II. The State ignores that the vast majority of the issues for interlocutory
review are legal, not factual, challenges.

The State’s motion is, at bottom, a red herring. The State devotes its entire

motion to the standard of review of the trial court’s factual findings, when all – or

substantially all – of the issues raised in this appeal are legal issues subject to de

novo, not clearly erroneous, review. See Part I, n.2, supra.

For example, one of Appellants’ primary issues challenges the trial court’s

misinterpretation and misapplication of Williams v. State, 258 Ga. 305 (1988).

Specifically, Appellants challenge the trial court’s interpretation and application of

the Williams forensic misconduct standard applicable to the District Attorney’s

“legally improper” speech and other established forensic prosecutorial misconduct,

including fraud upon the court via false testimony under oath. See [R. at 1620, 1628,

1631] (noting “reasonable questions about whether the District Attorney and her

hand-selected lead SADA testified untruthfully” and describing the church speech

as “still legally improper.”). Interpretation and application of the law are purely

legal questions reviewed de novo, wholly distinct from the deferential ambit of the

State’s sole string citation on the clearly erroneous standard of review.

Tellingly, the State’s motion wholly ignores this forensic misconduct issue

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and the other legal issues that will be subject to de novo review. It also ignores trial

court’s own candid admission, made in its order, of a lack of certainty in its

application of the law and its comments lamenting the lack of precedent applying

Williams and questions surrounding the forensic misconduct legal standard. See [R.

at 1629].

Appellants’ compelling legal challenges do not depend upon contesting or

challenging the trial court’s findings of fact. Indeed, many of the trial court’s factual

findings are favorable to Appellants and damning to the District Attorney and her

office. See [R. at 1620, 1627, 1628, 1631] (noting “an odor of mendacity” and

describing DA Willis’ conduct as a “tremendous lapse in judgment,” her testimony

as “unprofessional,” and her speech as “legally improper.”). The focus of these

appeals will be the legal errors that the trial court committed below, errors that this

Court has plenary authority to review and decide.

(Continued on the next page with signatures)

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CONCLUSION

The State has moved this Court to act contrary to statute and its own Rules. It

ignores that the issues to be raised in this appeal are largely legal, rather than factual,

a distinction that undercuts the logic of the State’s own argument. In short, the

State’s motion is unsupported by any relevant authority and has no basis in law or

fact. Appellants respectfully request this Court DENY the State’s motion to dismiss

in case numbers A24A1595-1603.

Respectfully submitted this 20th day of June, 2024.

/s/ Steven H. Sadow

Steven H. Sadow
Georgia Bar No. 622075
Lead counsel for President Trump

/s/ Jennifer L. Little /s/ Matthew K. Winchester

Jennifer L. Little Matthew K. Winchester
Georgia Bar No. 141596 Georgia Bar No. 399094
Counsel for President Trump Counsel for President Trump

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CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true and correct copy of the within

and foregoing pleading upon Mr. Alex Bernick, Assistant District Attorney for

Fulton County, or a member of his staff, by filing this RESPONSE with the Court

of Appeals E-Fast service, by emailing same to all counsel of record, and by

depositing the same in the U.S. Mail with adequate first-class postage affixed

thereon to ensure delivery, addressed to Fulton County District Attorney’s Office,

136 Pryor Street, third floor, Atlanta, Georgia 30303.

Pursuant to Rule 24 (f) (1), I hereby certify that this request (1,951 words)

does not exceed the criminal case word count limit imposed by Rule 24.

This 20th day of June, 2024.

/s/ Matthew K. Winchester

Matthew K. Winchester
Georgia Bar No. 399094
Counsel for President Trump