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Opinion: Georgia judge got the Fani Willis call right

Editor’s Note: Norman Eisen served as counsel to House Democrats in the first Trump impeachment and as White House ethics czar and ambassador to the Czech Republic in the Obama administration. E. Danya Perry is the founding partner at Perry Law, former deputy chief of the Criminal Division for the Southern District of New York, former deputy attorney general for the State of New York and chief of investigations for the Moreland Commission. Joshua Kolb is an attorney at Perry Law who served as law clerk for the Senate Judiciary Committee.

Georgia Judge Scott McAfee has continued his run of Solomonic decisions in his ruling Friday rejecting the disqualification of Fulton County District Attorney Fani Willis, who is overseeing the case accusing former President Donald Trump and a group of his associates of election interference in the state. Defense lawyers had asked for her to be tossed from the case because of alleged conflicts of interest resulting from revelations that she had a romantic relationship with the private attorney she’d hired as lead prosecutor, Nathan Wade.

Norm Eisen - Courtesy of Norm Eisen
Norm Eisen - Courtesy of Norm Eisen

McAfee recognized Friday that there was no actual disqualifying conflict of interest proven, even though he criticized Willis for her conduct, since her relationship with Wade looked terrible. To resolve the situation, McAfee told the DA’s office Wade must step down if Willis is to remain on the case. Wade immediately did so, recognizing that it was the right — indeed the only — thing to do.

E. Danya Perry - Courtesy  E. Danya Perry
E. Danya Perry - Courtesy E. Danya Perry

We have recommended since the beginning of this sideshow that Wade depart in order to return the focus to what the case is about: the mountain of evidence that Trump and his co-conspirators engaged in one of the most serious alleged crimes in American political history. (Trump and other defendants have pled not guilty.) Now Wade has demonstrated his commitment to the prosecution by stepping away from it.

Portrait of Joshua Kolb. - CJ Studios
Portrait of Joshua Kolb. - CJ Studios

Thankfully, nothing that transpired during these disqualification proceedings diminishes the underlying strength of the case against Trump and his alleged co-conspirators. And McAfee’s other ruling earlier this week, in which he dismissed six of the 41 counts, did not fundamentally weaken the case either. Although he tossed a few counts for lacking specificity, he refused to throw out the most crucial racketeering charge — alleging a wide-ranging conspiracy to overturn the 2020 election results — and the key underlying evidence.

We all heard the tape of Trump saying that he just wanted “to find 11,780 votes” — which remains part of the charged conspiracy — and the Fulton County prosecutors have already secured guilty pleas from four former Trump associates confessing to violations of Georgia criminal law. Now that the judge has ruled against disqualification, this powerful case can resume.

Once it goes to trial, the defense will likely not be allowed to raise anything about the disqualification issue during the course of the proceedings. It simply has nothing to do with the merits of the case and the relevant evidence of the alleged conspiracy. And while some have raised legitimate concerns about these allegations affecting the jury pool, as trial lawyers, we think that can be overcome. People have short memories in this era of turbo-charged news cycles, and any potential jurors swayed by the disqualification effort should be possible to screen out by voir dire, the preliminary questioning of prospective jurors.

As Friday’s ruling underscores, under Georgia law, a disqualifying conflict of interest exists only when a relationship means a prosecutor would have motivation to seek a conviction that clashes with the prosecutor’s duty to seek justice. In previous cases, Georgia courts have definitively rejected romantic relations between attorneys as ever constituting a basis for disqualification.

The defense alleged that Willis and Wade hatched an improper scheme in which Wade used his significant government compensation to pay for Willis to take trips and receive other financial benefits.

Relying largely on Willis’ testimony, McAfee held that “the evidence demonstrated that the financial gain flowing from her relationship with Wade was not a motivating factor on the part of the District Attorney to indict and prosecute this case.” He also determined that the defendants“failed to demonstrate that the District Attorney’s conduct has impacted or influenced the case to the Defendants’ detriment.”

McAfee was also correct to suggest that the weight of the evidence did not conclusively show that Willis and Wade’s relationship began before Wade was hired — contrary to the defense’s assertions that the DA hired her boyfriend, and puncturing the theory that she did so to benefit her romantic partner.

Moreover, it is not unusual in Georgia for private attorneys to be hired to supplement government resources, and McAfee noted the $250 hourly rate being paid to Wade is a “relatively low amount.” Similarly, any travel Willis and Wade may have done together doesn’t give rise to a conflict of interest — since, like Wade’s compensation, it had no effect on Trump’s prosecution.

McAfee found that Willis’s and Wade’s testimony that they shared expenses on these trips “was corroborated by other evidence” and “not so incredible as to be inherently unbelievable.” During her testimony, Willis had explained that there was no paper trail of how she split costs with Wade because it was her practice to pay with cash. To us, her explanation was credible and especially powerful. The authors include children and grandchildren of Holocaust survivors. Our families maintained large stashes of cash and frequently used it to pay for things — a practice borne out of their historical experience.

Special prosecutor Nathan Wade speaks during a motions hearing for former President Donald Trump's election interference case at the Lewis R. Slaton Courthouse on January 12 in Atlanta. - Elijah Nouvelage/Pool/Getty Images
Special prosecutor Nathan Wade speaks during a motions hearing for former President Donald Trump's election interference case at the Lewis R. Slaton Courthouse on January 12 in Atlanta. - Elijah Nouvelage/Pool/Getty Images

But the absence of any legal grounds for disqualification hardly represents a free pass for Willis or Wade. As McAfee recognized, “reasonable questions about whether the District Attorney and her hand-selected lead SADA [Wade] testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety.”

The appearance of impropriety can threaten “confidence in the legal system itself,” he noted, and could lead members of the public to wrongly but “reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences.” While we disagree with the judge on this point, it was the right move for Wade to quickly resign. We hope Willis won’t protract the distraction by seeking leave to appeal.

More likely, the defendants might want to appeal. But that will not stop the case. Nor, in our estimation, will that effort succeed, given the stringent legal standard required in Georgia and the evidence that McAfee already heard and evaluated.

Now that this sideshow has begun to pass with Wade’s resignation, the most important next step is for the trial to be scheduled quickly. The case needn’t be delayed by Wade leaving the team — the very able group of assistant district attorneys and the other prosecutors who have long handled this case can continue their work. The Fulton County prosecution is critical to adjudicate the charges pertaining to the 2020 election — allegations that strike at the heart of our democracy and abuse of power. Therefore, the trial must begin as soon as possible so voters know Trump’s role before they once again cast votes in a presidential election in which he’s on the ballot.

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