Ga. judge mulls a pivotal decision
Actions of district attorney at issue in case vs. Trump
For Judge Scott McAfee, it was probably an awkward moment.
At a hearing in Atlanta last month, he issued a warning to his former boss, Fani Willis, the Fulton County district attorney, during her combative turn on the witness stand. Willis, who was fighting allegations that threatened her grip on the election interference case against former president Donald Trump, had become so irritated with a defense lawyer that she began expressing her frustration directly to the judge.
“I’m going to have to caution you,” the soft-spoken McAfee, of Fulton County Superior Court, told her in response. “We have to listen to the questions as asked. And if this happens again and again, I’m going to have no choice but to strike your testimony.”
Willis’s filibustering whirlwind subsided as she waved a hand in exasperation.
Now McAfee, who at 34 is too young to be president himself, is preparing to issue a high-stakes decision in the Georgia case against the former president and 14 of his allies: whether to disqualify Willis on the grounds that a romance she had with Nathan Wade, the lawyer she hired to run the case, created an untenable conflict of interest.
Legal experts generally agree that Willis used poor judgment in paying a romantic partner public funds while he was also at least partly paying for vacations they took together — the basis for the defense argument that she engaged in “self-dealing.”
Opinions differ, however, on whether her actions created a legitimate conflict of interest — and on whether even an appearance of a conflict is sufficient to disqualify the district attorney and her whole office.
Barely on the court for a year, the even-keeled McAfee hews to textualism, a common judicial philosophy that follows the law as written rather than divining intent. During the Trump case, he has kept things moving and done what he can to lower the temperature.
Willis and her team of prosecutors tried to persuade him not to hold hearings on the disqualification effort; she described the hearings as a “ticket to the circus” and reminded the court and the public during her testimony that the case against Trump had not changed. He and 18 of his allies were charged in August with attempting to subvert the result of the 2020 presidential election in Georgia; four defendants have already pleaded guilty.
But McAfee believed the allegations were serious enough to proceed with evidentiary hearings that proved to be explosive, revealing intimate details of Willis’s personal life. The hearings focused on when the relationship started, and whether Willis and Wade were lying when they said it began after she hired him. Another central question was whether the two prosecutors split the costs of their vacations.
Last week, the Trump case became central to McAfee’s own future on the bench when a Democratic challenger emerged in his reelection campaign and immediately criticized his handling of the disqualification matter. The opponent, Robert Patillo, is a local radio host and activist who has been affiliated with the Rainbow PUSH Coalition, which was founded by Jesse Jackson.
In an interview Thursday, Patillo, 39, said McAfee’s lack of experience had caused him to mismanage the case. “The court has turned this from one of the most solemn prosecutions of a former president into a daily reality show — something that you’d see on ‘Real Housewives,’ ” he said.
McAfee declined to comment for this article.
The judge was appointed last year by Governor Brian Kemp, a Republican, to fill a vacancy. Incumbent judges typically have an electoral advantage, since voters often don’t focus on judicial races. But as a Republican appointee in the heavily Democratic Fulton County, he appears to be taking nothing for granted.
He gave an interview to a local radio host Thursday, assuring listeners that the emergence of a political foe would not influence his decision on whether to disqualify Willis, which he said he had already made.
A key issue the judge must address in his upcoming ruling is the standard for disqualification under Georgia law. At a hearing last month, he said that disqualification can occur if evidence shows even an appearance of a conflict of interest. Willis’s office asked him to reconsider, arguing that a higher standard — proof of an “actual” conflict — should be the bar.
Whatever he decides, McAfee has already earned the respect of a variety of legal experts. Among them is Norman Eisen, who served as special counsel to the House Judiciary Committee during Trump’s first impeachment.