Fani Willis may have survived a high-stakes effort to disqualify her from prosecuting the high-stakes election interference case in Georgia. But the biggest winner from the episode is likely Donald Trump.
The Fulton county district attorney can now continue prosecuting her case against Trump and 14 co-defendants as long as Nathan Wade, a top deputy with whom she had a romantic relationship with, resigns, Fulton county superior court judge Scott McAfee ruled on Friday. Wade did just that a few hours later.
But both the opinion and the extraordinary hearing that preceded it lends a hugely significant judicial imprimatur to Trump’s successful effort to diminish Willis’ credibility in the public eye.
Trump and his co-defendants have waged a successful campaign to diminish the perception of her – puncturing her reputation as an impartial prosecutor seeking justice and instead offering up the image of a flawed public official whose romantic feelings led to a lapse in judgment.
Friday’s developments are extremely significant. The Georgia case has long been considered one of the strongest against Trump. Unlike the two criminal cases being pursued by the justice department, it is also insulated from any direct interference by Trump should he win the 2024 election since he cannot dismiss the prosecutor or pardon himself in Georgia, even if he occupies the White House.
McAfee, who is also running to keep his seat on the bench, excoriated Willis for starting a financial relationship with someone she was supervising, calling it a “tremendous lapse in judgment”. And even if there’s no evidence she financially benefitted from their relationship, the financial relationship in which the two roughly split expenses and Willis paid Wade in cash for vacations with no records to back it up could lead a reasonable observer to believe there was a conflict.
“She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the district attorney benefited – albeit non-materially – from a contract whose award lay solely within her purview and policing,” he wrote. “An outsider could reasonably think that the district attorney is not exercising her independent professional judgment totally free of any compromising influences.”
Legally, the appearance of a conflict can be cured by Wade stepping aside, McAfee ruled. But politically, Trump is already working to make sure that’s not the case and the damage lingers.
Trump has suggested that Wade and Willis cooked up the scheme to indict him from the start. Even though this is patently false – the case was indicted by a regular grand jury of Fulton county citizens after an investigation by a special purpose grand jury – it is a clear attempt to permanently link Wade to whatever happens in the case.
Even while Willis is set to continue on the case, more trouble lies ahead. The state legislature is already taking steps to investigate her. A new state panel empowered to remove district attorneys can also take action. The state bar and the state ethics commission could also take action against her.
“Georgia law does not permit the finding of an actual conflict for simply making bad choices – even repeatedly – and it is the trial court’s duty to confine itself to the relevant issues and applicable law properly brought before it,” McAfee wrote. “Other forums or sources of authority such as the general assembly, the Georgia state ethics commission, the state bar of Georgia, the Fulton county board of commissioners, or the voters of Fulton county may offer feedback on any unanswered questions that linger.”
Steve Sadow, an attorney for Trump, has already suggested he will appeal the ruling. Even if McAfee’s decision is upheld by higher Georgia courts, the episode gives Trump another avenue to continue to try and drag out the case and try and undermine any potential future conviction.
“Her troubles are far from over,” wrote Clark Cunningham, an ethics expert and law professor at Georgia State University, in an email.
“Trump and his co-defendants will surely appeal and Judge McAfee’s order gives plenty of basis for them to argue to the court of appeals that just removing Wade is an inadequate remedy for what Judge McAfee calls ‘an odor of mendacity’,” he wrote. “Governor Kemp signed Georgia Act 368 on March 13 putting Georgia’s prosecuting attorneys qualifications commission back in business and the commission could move swiftly to exercise its power to remove her from office.”
If appellate courts also don’t review McAfee’s ruling before trial, there’s also the possibility of using the ruling to challenge any potential guilty verdict down the line, Cunningham said.
“There is still a risk of reversal of an eventual guilty verdict, especially if the court of appeals reviewing the verdict disagrees with McAfee as to whether Willis had a personal stake in the prosecution (the ‘actual conflict’ part of his decision) since if that standard is met, defendants don’t have to show actual prejudice to them.”
Anthony Michael Kreis, another law professor at Georgia State University, said he thought the ruling was “exceedingly unlikely to be disturbed on appeal”.
“Fani Willis suffered a drubbing on her ethics and professionalism but ultimately emerged with a massive win today,” he wrote in an email.
McAfee also suggested that Willis and Wade were dishonest – a hugely damaging accusation to any prosecutor, who is supposed to be an impartial bearer of justice.
He called Wade’s technical explanation for why he did not disclose his relationship with Willis “patently unpersuasive” and said it “indicates a willingness on his part to wrongly conceal his relationship with the district attorney”. He also suggested Willis may have not been entirely truthful when she testified during the hearing.
“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 and the need to make proportional efforts to cure it,” he wrote.
Outside of the relationship, McAfee also suggested Willis needed to tread carefully when speaking about the case publicly. During a January speech at a Black church in Atlanta, she suggested those who sought her disqualification were racist. While McAfee said those remarks did not merit disqualification, he said they were “legally improper” and “dangerous waters for the district attorney to wade into”.
