Official says law Trump is using to seek legal fees in Georgia election case likely unconstitutional

ATLANTA (AP) — The head of a nonpartisan group that supports Georgia prosecutors said the new state law that President Donald Trump and others charged in an election interference case are using to seek millions in attorney fees and costs from the Fulton County district attorney’s office is likely unconstitutional.

The law has “serious and potentially unconstitutional deficiencies,” notably because it denies county governments any sort of due process when defendants in a case request reimbursement, Georgia Prosecuting Attorneys' Council Executive Director Pete Skandalakis wrote in a court filing Wednesday.

Georgia state legislators last year passed a law that says that if a prosecutor is disqualified from a case because of their own improper conduct and the case is then dismissed, anyone charged in that case is entitled to request “all reasonable attorney’s fees and costs incurred” in their defense. The judge overseeing the case then is responsible for reviewing the request and awarding the fees and costs, which are to be paid from the budget of the prosecutor’s office.

Trump is seeking more than $6.2 million and the total amount sought by him and other people charged in the case is nearly $17 million, Skandalakis noted.

Fulton County District Attorney Fani Willis obtained an indictment against Trump and 18 others from a grand jury in August 2023, using the state’s anti-racketeering law to accuse them of participating in a wide-ranging scheme to illegally try to overturn Trump’s narrow 2020 presidential election loss to Democrat Joe Biden in Georgia.

Willis and her office were removed from the case after the Georgia Court of Appeals found that there was an “appearance of impropriety” created by a romantic relationship she had with the special prosecutor she chose to lead the case. Skandalakis took over the case late last year and dismissed it in November.

The new law “is probably unconstitutional because it leaves county governments — entities that are politically and practically separate from the elected District Attorney — responsible for paying costs that do not involve them, without any legal recourse to contest that responsibility,” Skandalakis wrote. That denies them due process under both the U.S. and Georgia constitutions, he argued.

A spokesperson for Willis declined to comment on Skandalakis' filing. Willis had previously asked the judge to allow her to be heard on the matter of any claims for fees and costs filed in the case.

Steve Sadow, Trump’s lead attorney in Georgia, said in an e-mailed statement that the law is constitutional and “Mr. Skandalakis’ contentions are simply wrong.”

Due process requires notice and an opportunity to be heard, but the new law “treats the county government as a non-party entity subject to a money judgment it has no ability to contest,” Skandalakis wrote.

He also pointed out that the new law requires that the prosecutor be disqualified “due to improper conduct" and argues that there has been no finding of improper conduct in this case. Rather, the appeals court found an appearance of improper conduct. Therefore, to award Trump and others their legal costs, the judge “must find an appearance is the same as a completed act.”

Skandalakis also notes that the law doesn't define a reasonable hourly rate for an attorney. The hourly rates paid to attorneys who step in when a district attorney or the state attorney general has a conflict are $66.57 and $125, respectively, Skandalakis wrote. Those rates are far below what some of the defense lawyers in the election case charged, but “they should be considered as part of what is reasonable,” Skandalakis wrote.

Defense attorneys sought Willis’ removal after one of them revealed in January 2024 that Willis had engaged in a romantic relationship with Nathan Wade, the special prosecutor she had hired to lead the case. The defense attorneys said the relationship created a conflict of interest.

The trial judge, Fulton County Superior Court Judge Scott McAfee, rebuked Willis, saying in an order in March 2024 that her actions showed a “tremendous lapse in judgment.” But he did not find a conflict of interest that would disqualify Willis. He ultimately ruled that Willis could remain on the case if Wade resigned, which the special prosecutor did hours later.

Defense attorneys appealed that ruling, and the Georgia Court of Appeals removed Willis from the case in December 2024, citing an “appearance of impropriety.” The Georgia Supreme Court in September declined to hear Willis’ appeal.