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Trump Will Have Strong Argument for Appeal After Fani Willis’ Latest Move

Photo by Tingey Injury Law Firm / Unsplash

By Cully Stimson and Hans von Spakovsky, The Daily Signal | March 15, 2024

Fulton County, Georgia, Superior Court Judge Scott McAfee ruled Friday that county District Attorney Fani Willis could not go forward with her prosecution of former President Donald Trump and his co-defendants until she either recused herself and her office from the case or special prosecutor Nathan Wade was removed from the prosecution, giving the defendants a partial victory. 

In response to the court’s ruling, Wade announced his resignation from the case, effective immediately. 

McAfee issued a mixed ruling in the election interference case with respect to defendant Michael Roman’s motion (joined by other defendants, including Trump) to recuse Willis, her office, and Wade, who the judge referred to as “her romantic partner.”

McAfee found that while the defendants had not produced sufficient evidence to show an actual conflict of interest in the case, the evidence did show an appearance of impropriety. He also concluded that while Willis’ speech at her church accusing her critics of racial animus was “legally improper,” it had “not crossed the line to the point” where it would deny the defendants a fair trial.

Due to the “established record” that “highlights a significant appearance of impropriety that infect the current structure of the prosecution team,” the case cannot go forward until Willis decides who will remain on the prosecution team. One them was going to have to hit the road.   

The court’s 23-page order includes specific findings of fact and conclusions of law. In journeyman fashion, the judge walked through the procedural posture of the case, and then turned to the law and standards applicable to actual conflicts of interest, an appearance of impropriety, and “forensic misconduct,” which, under Georgia Supreme Court precedent, are improper comments by a prosecutor regarding “his personal belief in the defendant’s guilt.” 

No Actual Conflict of Interest

The court opened by noting that “prosecutors are held to a unique and exacting professional standard in light of their public responsibility.” McAfee noted that the Georgia Supreme Court recognizes two grounds of disqualification of a prosecutor from a case: a conflict of interest or forensic misconduct.

Conflicts of interest include acquiring a “personal interest or stake in the defendant’s conviction.” The judge correctly noted that determining whether a prosecutor has a conflict of interest in a given case is a “fact-driven one.” 

The court turned first to the issue of monies paid by the Fulton County District Attorney’s Office to Wade. While noting that there is nothing, per se, wrong with a special prosecutor being supervised by a “neutral and detached” district attorney, nor is there anything wrong, per se, with romantic relationships between prosecutors, when both occur, as alleged in this case, there is a prima facie argument that raises the question of whether there was financial enrichment and “improper motivations.” 

The court found that the employment contract between the District Attorney’s Office and Wade provided for a $250 hourly rate, which was “a relatively low amount by metro Atlanta standards for an attorney of Wade’s years of service.” 

The court also found that Willis and Wade, between October 2022 and May 2023, traveled together on four separate occasions that “resulted in documentable expenses.” The trips included an October 2022 cruise to Miami and Aruba; a December 2022 trip to Miami for another cruise; a March 2023 trip to Belize; and a May 2023 trip to Napa Valley, California.

The court also found that the couple took “a number of daylong road trips to Tennessee, Alabama, South Carolina, North Carolina, and other parts of Georgia.” 

Willis claims that she reimbursed Wade for many of the expenses of those trips in cash. The court found that while “such a reimbursement practice may be unusual and the lack of any documentary corroboration understandably concerning,” it also found that their testimony “withstood direct contradiction” and was corroborated by other evidence. 

As such, the court found that the “evidence did not establish the district attorney’s receipt of a material financial benefit as a result of her decision to hire and engage in a romantic relationship with Wade.”

More importantly, the court found that the “financial gain flowing from her relationship with Wade was not a motivating factor … to indict and prosecute this case,” or that Willis’ conduct impacted or influenced the case “to the defendant’s detriment.” 

At the same time, McAfee wrote that his findings are “by no means an indication that the court condones this tremendous lapse in judgment or the unprofessional manner of the district attorney’s testimony during the evidentiary hearing.”

He pointed out that other entities, such as the state General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or ultimately the voters of Fulton County “may offer feedback on any unanswered questions that linger.” 

Court Found Appearance of Impropriety

McAfee turned next to whether there was an appearance of impropriety, noting that Georgia appellate courts require such an analysis with respect to state prosecutors. 

An appearance of impropriety is, McAfee noted, “conduct or status that would lead a reasonable person to think that the actor is behaving or will be inclined to behave inappropriately or wrongfully.”

Quoting from a decision written by then-U.S. Supreme Court Justice Antonin Scalia, McAfee wrote that a reasonable person “is not an uninformed member of the public with only a passing knowledge of the facts at hand.” 

A perceived conflict “threatens confidence in the legal system itself.” If that goes uncorrected, reasoned the judge, it “undermines the legitimacy and moral force” of the judiciary.

Unlike the situation where there’s an actual conflict of interest in a case, which requires recusal of the prosecutor, under Georgia case law, disqualification “due to an appearance of impropriety should rarely occur where there is a danger that the actual trial may be tainted.”

After explaining the law, McAfee concluded that the “record made at the evidentiary hearing established that the district attorney’s prosecution is encumbered by an appearance of impropriety.” McAfee stressed that the appearance was not “created by mere status alone, but comes because of specific conduct” by Willis and Wade.

McAfee found that Willis “chose to continue supervising and paying Wade while maintaining” a romantic relationship with him, and that she “allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation.” That troubled McAfee, as did the fact that Willis testified that her relationship with Wade was “cemented” and “stronger than ever” after the motion to recuse was filed. 

Of note, McAfee found Wade’s explanation about the “inaccurate” answers he provided in his divorce proceedings “patently unpersuasive” and indicated to McAfee the extent to which Wade was willing to “wrongly conceal his relationship with the District Attorney.”

More damning was McAfee’s finding that Willis’ testimony “did not put these concerns to rest.” That’s judicial-speak for the fact that the judge didn’t believe Willis.

Therein lies the problem: a non-credible prosecutor.

Finally, McAfee remarked that there was “an odor of mendacity” that remains in the case. In other words, the judge was signaling that many of the witnesses were less than truthful in their sworn testimony before the court, which raises strong suspicions that they may have committed perjury. 

Improper Comments by Willis

Lastly, McAfee turned to the issue of whether Willis engaged in “forensic misconduct” in her church diatribe. 

Of course, when a prosecutor indicts or charges a person with a crime, that is strong evidence that the district attorney thinks that the defendant committed the crime, and that there is evidence sufficient to prove the case beyond a reasonable doubt. But because of the awesome power vested in state and federal prosecutors, there are rules with respect to what prosecutors can say to the public about any particular case.

Typically, prosecutors only speak publicly about the charges and procedural next steps in a case and try their case in court. 

Here, McAfee found that Willis gave a prepared speech before the congregation of a “local Atlanta church on January 14, 2024.” He noted that the speech was public and televised, that Willis complained about the Fulton County Commission “and so many others” who questioned her hiring of Wade. Her speech was given after the motion to recuse was filed, causing McAfee to write that her speech, and the reference to “so many others,” may or may not have been aimed at the defendants in this case.

McAfee wrote, “therein lies the danger of public comment by a prosecuting attorney.”

More troubling for McAfee was the fact that Willis said that her opponents were “playing the race card,” which had the effect of suggesting that the motivation for filing the motion to recuse was racial in nature. 

Again, McAfee did not find that the speech “crossed the line” to deny the defendants a fair trial requiring Willis’ disqualification. But the judge was highly critical, saying that her speech was “legally improper” and created “dangerous waters for the District Attorney to wade further into.” 

Willis Or Wade Must Recuse

McAfee concluded that the “case cannot proceed until the State selects one of two options.” Option No. 1 is for Willis to recuse herself and her entire office. Option No. 2 was for Wade to step aside.

That’s a shrewd ruling on the part of the judge.  It will certainly not make everyone happy, much less the defense, who could appeal the ruling. 

There was little doubt that Willis would choose Option No 1. Her ego alone will force that choice, as she was a relative nobody before this case, and she has too much invested in this case politically to simply abandon ship now. 

By not removing Willis from the case, McAfee put the ball in Willis’ court.  Now that Wade has resigned from the case, Willis and her office will continue to handle the case. 

If there is a conviction in any of these cases, the defendants will have a strong appellate issue to assert, given the devastating factual findings by McAfee.

Willis has been and is her own worst enemy.

This latest order came on top of another damaging order issued by McAfee on Wednesday, in which he dismissed six of the criminal counts against various defendants, including Trump, because they were too vague to allow the defendants to adequately defend themselves.

Although McAfee gave Willis the ability to refile a new indictment, that would require her to reconvene a new grand jury, further complicating and delaying her case.

Charles Stimson is deputy director of the Edwin Meese III Center, manager at the National Security Law Program, Senior Legal Fellow, and Senior Advisor to the President.

Hans von Spakovsky is manager of the Election Law Reform Initiative and Senior Legal Fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies.

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