Willis prevails in Georgia, but her win is devastating
If the judge's ruling that Fani T. Willis can remain in charge of the Georgia election interference case against Donald Trump was a win for the Fulton County district attorney, and it was, I shudder to imagine what a loss would look like.
The decision by Superior Court Judge Scott McAfee allows Willis to continue to lead the case, provided that Nathan Wade, the chief prosecutor with whom she had a romantic relationship, steps aside (which he did Friday). That conclusion, grounded on the finding that their romantic and financial entanglement created “a significant appearance of impropriety,” seems like a sensible outcome.
Trump partisans will howl, but the evidence of the Willis-Wade affair did not rise to the level of requiring the disqualification of Willis and her entire office, or the consequent reassignment and potential shelving of the case against Trump and numerous co-defendants.
That said, McAfee's findings were nothing short of humiliating for Willis, for whom he once worked. This episode leaves her reputation in tatters, and, as McAfee suggested in his ruling, holds open the possibility of sanctions by, among others, the Georgia State Ethics Commission and the state bar.
The essence of the complaint against Willis, lodged by defendant Mike Roman and joined by Trump, was that Willis benefited from hiring Wade because he paid for several vacations they took together. Willis and Wade said that they had “roughly” split expenses and that Willis repaid him in cash. McAfee assessed this assertion as “not so incredible as to be inherently unbelievable” - hardly a ringing endorsement a prosecutor wants to hear from the judge overseeing the biggest case of her career.
And McAfee was just getting started. He said there wasn't proof that Willis “arranged a financial scheme to enrich herself (or endear herself to Wade).” Then, he unloaded. He termed the relationship a “tremendous lapse in judgment.” He criticized “the unprofessional manner” of Willis's combative testimony on the subject. He noted that “Georgia law does not permit the finding of an actual conflict for simply making bad choices even repeatedly.”
Ouch, ouch and ouch.
Next, McAfee turned to the appearance of conflict and the associated question of when the Willis-Wade relationship started: Was it before she hired him or, as they both testified, only after he came onboard? Here McAfee correctly assessed that the defendants had not proven their claim that the romance came first but he also correctly invoked the “odor of mendacity” surrounding the issue.
“Reasonable questions,” he wrote, “about whether the District Attorney and her hand-selected lead [prosecutor] 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.”
Pause a moment to take that in. McAfee is saying - not just hinting but saying - that there are “reasonable questions” about whether Willis lied under oath.
Likewise, McAfee cited Wade's “patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce.” In written answers to questions posed by his wife's lawyers in his divorce case last May, Wade denied having sexual relations with others during his marriage, including while he and his wife were separated and “up to the present.” But in the hearing before McAfee, Wade acknowledged having sexual relations with Willis by then. He defended the false statement to the contrary in his answer to the interrogatory by claiming that his marriage was “irretrievably broken” by then. McAfee appropriately took him to task, saying his response “indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”
Finally, McAfee turned to Willis's speech Jan. 14, the day before Martin Luther King Jr. Day, at Big Bethel AME Church in Atlanta, in which she accused unnamed critics of “playing the race card” by going after her decision to hire Wade, who is Black. “The effect of this speech was to cast racial aspersions at an indicted Defendant's decision to file this pretrial motion,” McAfee said. He said it hadn't “crossed the line to the point where the Defendants have been denied the opportunity for a fundamentally fair trial” but was “still legally improper.”
McAfee, just 34 and new to the bench, is going to come in for criticism by both sides. He headed a chapter of College Republicans and joined the conservative Federalist Society in law school. He and his wife also contributed to Willis's campaigns. Watching him on the bench, I was impressed by his even-keeled demeanor amid courtroom shenanigans, such as Willis's volcanic interchange with defense lawyer Ashleigh Merchant.
Friday's opinion calls it straight down the middle. Willis will stay, but it is hard to imagine a more devastating win.