Decision In Fani Willis Conflict Of Interest Hearing
tl;dr: Either he goes or she (and her office) go
This morning, Fulton County Judge Scott McAfee issued his ruling as to whether or not (1) Fulton County DA violated the law in entering into a romantic relationship with the special prosecutor she hired to handle the alleged attempt to overturn the results of the Georgia Election and (2) if her office would be disqualified from prosecuting said case. Here is the summary from Betsy Woodruff Swan and Kyle Cheney at Politico:
Judge Scott McAfee ruled that either Willis and her entire office, or another top prosecutor in the case, Nathan Wade, must step aside to prevent an “appearance of conflict” over potential financial improprieties caused by their romantic relationship.
Trump and his allies had failed to sufficiently substantiate claims that Willis’ romantic relationship with Wade had created an “actual” conflict of interest that required her and her office to be removed from handling the case, McAfee concluded.
“The Court finds that the evidence did not establish the District Attorney’s receipt of a material financial benefit,” McAfee ruled, despite characterizing the relationship as a “tremendous lapse in judgment.”
https://www.politico.com/news/2024/03/15/judge-rejects-trumps-bid-to-disqualify-georgia-prosecutor-00147286
As the decision was handed out at 9 am this morning, most analysts are still reading through it and parsing the reasons. Georgia Defense attorney Andrew Fleischman, who is a strong critic of Willis and her office, posted these thoughts about the decision on the platform formerly known as Twitter about the judge’s ultimate reasoning:
You can read all of Fleischman’s short analysis here. While Fleischman personally feels there was enough evidence to find a disqualifying conflict of interest, he notes in another post on Xtter that it definitely wasn’t open and shut. He also discusses the different potential lines of appeal that the defendants will most certainly take.
I think Judge McAfee’s decision is correct under Georgia law. That last part is critical. In some States, for example, California as Ken White (Popehat) has noted, that relationship definitely would be a violation of the law. Georgia statutes, on the other hand, are not as sweeping.
That said, regardless of whether or not there was an actual conflict of interest, Willis’s behavior was improper. That appearance of impropriety is enough to warrant addressing. Wade should have been removed from this case long before it reached this point. Honestly, this decision is doing her office a favor because it creates an opportunity to remove Wade from this case without losing face.
Either way, given the options of disqualifying the entire office or removing the special prosecutor (and, in doing so, eliminating this self-own headache), I expect we will get news of Wade’s “voluntary” departure from the case by early next week. In the meantime, I leave you with a sentence that Fleischman called out from the closing of the decision:
A reasonable observer unburdened by partisan blinders should believe the law was impartially applied, that those accused of crimes had a fair opportunity to present their defenses, and that any verdict was based on our criminal justice system’s best efforts at ascertaining the truth.
https://www.documentcloud.org/documents/24482771-order-on-motion-to-disqualify
I suspect the Judge wrote this with a knowing eye to the criticism that this decision will receive from supporters of the former President (and most likely, as well, defenders of DA Willis). This quote also signals what Judge McAfee is focused on to guide his adjudication of this complex case.
Clear case of the Talleyrand Principle: It was worse than inappropriate, it was a mistake.
So, to summarize the judge’s ruling: She can do anything for love, but she can’t do that.
@Kylopod: My laugh just startled the sleeping dog on my office floor. Nicely done.
@Kathy:
Oh it was a total mistake and a demonstration of poor judgement. That said, poor judgment is not inherently disqualifying.
@Kylopod:
No, she can’t do that.
(Aside: I wish I had to power to give you more upvotes. I can at least confirm that at this point, you’ve won the comment thread)
A Solomonic decision and @Kathy: is correct, but also stupid.
Unfortunately, this gives trump something else to appeal and further delay the trials.
@Kylopod: I join in endless upvotes and cannot believe that this will not be the headline of some national article.
In addition to Wade’s imminent voluntary departure, I will give you one more guaranty. That relationship is over. Was it worth it Fani?
@Sleeping Dog: I doubt there is an appeal of this issue that will delay this case, but bringing in a new special prosecutor will certainly slow it down. But this is the case that was never going to hearings before the election, so I don’t know that the timing here is as big a deal. But this is also the case the a President Trump cannot automatically shut down.
While not really “fine” with the delay in the trial, I still think that the delay means folks will be reminded that Trump literally tried to steal the election and should not even be on the ballot this year much closer to election day, and that is perhaps a very good thing.
This is a very visible reminder that he is scum of the earth, and we should have never let Trump back on the ballot. We can be such fools in the United States.
Not a conflict of interest that denies the defendant due process, merely corrupt. I think that’s reasonable.
ETA: “That relationship is over. Was it worth it Fani?”
Well, that depends on how nice the Carribean trip turned out to be, n’est pas? As to the relationship being over, in principle? Lust has survived worse disappointments. And he’s already done his part (and been paid), she’s had her trip. No harm, no foul on him leaving the team.
@Just nutha ignint cracker:
I’m pulling on a string here, which I think gets to the challenge most non-lawyers have in these discussions: linguistic slippage.
“Corrupt” is a great example of a colloquial word with far more tightly defined legal meanings. Ditto things like “conflict of interest” and “unethical.” This means things get confusing really fast when we discuss these topics.
What Willis did wasn’t apparently corrupt under Georgia law. Again, to Ken White’s point, if you moved this to a different state, it probably was.
I have to admit that personally, I’m not sure if this is what I would consider “corrupt.” “Unethical,” definitely—though again, that is in a general sense versus the strict definition that state Bars take in such matters.
This, of course, isn’t a new complaint. I’m old enough to remember the about of hay that was made out of Bill Clinton’s “It depends on what the meaning of the word ‘is’ is.” That was a particularly egregious example of hyperparsing. But this is definitely a challenge in cases where different modes of speech run into each other.
Addendum: After writing this, I realize I need to spend some time thinking about why, at this moment, I see a distinction between “unethical” and “corrupt” in this case.
Judge McAffee’s remarkable patience with the herd of defense lawyers trying to make chicken salad out of chicken feathers is nicely reflected in this decision. He gave them ample opportunity to make their case and then let them know they didn’t quite get there. He also allowed Willis and Wade to “defend their honor,” such as it was, and let them know they were THISCLOSE to screwing up the case, and that they should have known better. All lawyers are given this guide star: an *appearance* of impropriety is going to be considered an impropriety, so DON’T DO IT.
I certainly think Willis’ and Wade’s relationship was improper, inappropriate, and at root, stupid. And politically it’s a huge own goal. But I confess I’m failing to see conflict of interest. She’s paying him to prosecute Donald Trump. What part of this motivates him to not prosecute Donald Trump?
@Matt Bernius:
@Charley in Cleveland:
The infuriating part is not that it was a mistake, but one that’s very obvious and very easy to avoid.
I mean, high profile cases invite close scrutiny by everyone. The media, the defendants, and the public. The heart may want what the heart wants, but then the mind should know your romantic partner cannot work the case you’re overseeing.
The MAGAs are foaming at their mouths over this. Surprise, surprise.
@CSK: Let’s not forget, Trump pardoned his son-in-law’s dad who had been convicted for, among other things, hiring prostitutes to entrap his own brother-in-law.
But two people on the same legal team boinking each other is an unacceptable conflict of interest that makes the case against Trump null and void.
@gVOR10:
The potential CoI is that paying him (by the hour) motivates him to drag out the case (and her if payments to him benefits her as was alleged). For example, filing this as a very complex RICO action that will take years to try rather than a more straightforward cause of action.
@inhumans99:
This isn’t going to trial this year, let alone before election day. Because it was charged as a RICO case, its gonna take years to go to trial.
@Sleeping Dog:
This isn’t the type of ruling that is subject to pre-trial appeal.
@Kylopod:
I think they conveniently forget about Charles Kushner.
Willis isn’t out of the woods with this. There is still substantial evidence she, and Wade, lied under oath. There is now scrutiny on whether she really repaid Wade for their vacay expenses, etc. The GA legislature has already held hearings. And who knows if the GA AG has investigators on the case.
As for the Trump show trial, well, they don’t really care if it’s overturned on appeal if they can get the media event before November. But Willis herself could still be force to stay out of the prosecution by state officials.
JKB, buddy, no one (least of all Willis) expects this to go to trial before November. Keep up with the discussion.
I find myself wondering what the other option, the one where Willis and her office steps back, even looks like? How is there a case if she isn’t involved? Maybe it just means personal involvement? Maybe that’s a viable path forward? I don’t know enough to even know.
@Kylopod: Constructing strawmen out of ignorance is boring partisan idiocy. An stone to fruit, not even in the same type of category.
Trump’s pardon of course is the subject of politics (and yes indeed corrupt in the broad ordinary sense) but is not subject to bar or Georgia state regualtions on lawyers and prosecutors offices.
Lawyers and such offices are subject to laws and regs that general citizens are subject to – and of course the US presidency has its own rule set.
That Ms Willis foolishly opened up her case to a procedural attack is no one’s fault than Ms Willis. For such high profile cases or really any case where there is a reasonably well-resourced legal opposition, to whinge on about procedural attacks is merely to display either your incompetence or your pure partisanship (or both). As Trump side example, see his NY cases and his partisan team whinging on about those.
Ms James in NY is demonstrating how this is done better than Ms Willis – a degree of high profile cases competence in constrast.
Actual real rule of law is not satisifying to party political partisans nor their desired timelines. But if one wants real rule of law in reality – versus the pretence of the argument – then procedure is part of the equation, regs are part of the equation and indeed ethics and related rules for the lawyers are part of the equation. Without doubt in the likely near future when Ms Habba manages to get herself disbarred you lot will be cheering over things equally procedural.
No lack of judgement on Fani.
Her statements in the Black Church were her being a [brave strong smart black woman] .
It would be hilarious if the Court put a gag order on Fani Willis for her “legally improper” church speech and allowed Donald Trump to smear her.
@Matt Bernius: For the record, I see no particular distinction between “unethical” and “corrupt” [my inner Manichaean jumps and pumps fist]. I have no objection to others making such distinctions–except that those people are WRONG(!!!). 😉
@Charley in Cleveland:
Words to live by–for lawyers and non-lawyers alike.
@JKB: @Joe: Lighten up! He needs whatever he can gin up for himself to believe in order to maintain his faith.
ETA (finally remembered!): He probably DOES know the trial may not come for years; he’s desperately using what he has to sway the lurkers.
@Paul L.: The Racial Identity Special Pleading is rather bankrupt really although typical now of the identity politics fraction of the Left.
Of course partisan and identity politics are not the governing law here so, such special pleading come down to self-harm via self-deception.
Ms James rather shows that no special pleading is needed, one can be professionally ethically competent and legal process astute and indeed black at the same time without need for identity politics special pleading.
As this is not the first times Ms James has shown such poor judgment, it is rather the argument that making one’s calls on suport based on identity politics first is rather a route to self-harm.
@Joe:
No one with criminal legal system experience–or who has been following that office. There are a lot of anti-Trump folks who are outside of those camps.
Honestly, this is the biggest critique of the decision to charge on RICO. This is one of the most clear-cut evidence sets we have (along with the Documents case). If she had wanted to, Willis could have narrowed the charges, just focused on Trump, and actually gotten this to trial prior to the election.
Which gets to the question about the conflict of interest that Ski (who is a lawyer) touched on
This gets us back to Fleischman’s summary of Judge McAfee’s decision:
While choosing to prosecute this as RICO under Georgia’s statute meant that this would be a long process, it was a defensible strategy under both the law and in keeping with the Fulton County DA office’s history.
@JKB:
While I’m not sure, based on the Judge’s opinion, that he would agree there is “substantial” evidence, I agree that this is a potential headache for Willis. However, at best that would be a bar issue unless significant new evidence emerges.
From Judge McAfee’s decision:
I guess you can take some hope in the fact that McAfee basically said neither side proved their claims. However, in this case–due to the construction of the law–the tie goes to the prosecution.
This ruling is technically wrong because an allegation of appearance of conflict needs to be brought up before the actual adjudication begins due to judicial economy. That said, no one is going to tell a judge how to run his courtroom so an appeal is unlike if only for the sake of comity. As to the case itself, the Trump team was able to prove nothing but the way the judge ruled makes it sounds like he think Willis is lying and his ruling, as meritless as it is, is all he can do.
@Matt Bernius:
“Not credible and unreliable” GPS evidence and the use of untraceable cash payments handwaved away by Judge McAfee as not up to the preponderance of the evidence standard are used by DA Fani Willis to convict in criminal trials beyond a reasonable doubt standard.
I hope Fulton County defense attorneys use this precedent against DA Fani Willis in the future.
@Matt Bernius:
Perhaps, but the judge did use “odor of mendacity”. Basically, he tossed the perjury and other issues to the other forums to investigate and adjudicate.
And to the case, Molly Hemingway pointed out that the tape of the phone call was actually recorded by the woman while she was in Florida where they have two-party consent for recordings. So that tape could be tossed as illegally obtained.
Fun times
@Paul L.:
I am momentarily breaking my rule not to engage with you to agree that I hope defense attorneys use the position the DA’s office took on cell phone records. And also appeal any cases where geofencing of cell phones was the primary source of incriminating evidence.
@JKB:
I guess that’s a possibility, but I wouldn’t put much hope in her opinion given her lack of legal training/experience. Conservative Legal Professor and evidentiary expert Orin Kerr doesn’t seem to think there’s much there:
Likewise Andrew Fleischman in response to Kerr noted that he couldn’t find any example in Georgia Criminal Cases where the state has ever applied another state’s suppression remedy.
So that particular article feels like standard The Federalist wish casting.
Big Daddy’s classic speech in Cat on a Hot Tin Roof:
The tape issue seemed a leap but it does create an appeal or challenge possibility. Or maybe the person who did the recording where it was illegal will be prosecuted or sued civilly. She tried to claim collection of evidence but she within hours released that evidence to CNN.