Judge no Solomon; DA should have split

Court finds Willis can stay on Don case — so long as lover prosecutor leaves

MANY commentators are reviewing the decision of Fulton County Superior Court Judge Scott McAfee to disqualify lead special counsel Nathan Wade but not Fulton County District Attorney Fani T. Willis as “Solomonic” or “splitting the baby” in the Trump prosecution.

Indeed, it was similar in all but one respect. The baby at issue before King Solomon survived. That whole point of the story was not to kill the baby but to see which of the two women loved the baby more.

In the story from 1 Kings 3:16–28, two mothers claim the male child, so Solomon declares that each can get one half. One mother immediately accepts while the second woman begs him to just give the first woman the child and not to kill him.

Solomon immediately gives the second woman the child as clearly the mother who loves the baby.

But if either Wade or Willis truly loved “their baby” — the case against Trump — they would have removed themselves weeks ago.

Their personal controversies have derailed the case and mired the prosecution in scandal. Ethically, this should not have been a difficult question. They should have stepped aside.

‘Playing the race card’

That conclusion is more than evident in Judge McAfee’s decision, which shreds their claims on the stand and outside of the courthouse.

The court describes Willis’ controversial speech at a church as “playing the race card . . . to cast racial aspersions at an indicted defendant’s decision to file this pretrial motion.”

He hammers Willis for her lack of professional judgment and stresses, with perhaps an unintentional pun, that “providing this type of public comment creates dangerous waters for the District Attorney to wade further into.”

Judge McAfee also indicates that the testimony of Wade failed to resolve questions of filing false statements to a prior court and that his testimony on when the relationship began stood contradicted.

McAfee has done a fair job throughout the case. Moreover, he makes a valid point when he notes that this evidence does not establish a strong basis for claiming that the case was brought or pursued due to this relationship or possible financial gain.

Indeed, the purpose of this case was not personal but political.

While the indictments contain some valid criminal charges, they are largely minor offenses like unlawful access to voting areas. The overall racketeering claim used to ensnarl Trump is forced and weak.

The problem is that the court casts doubt on Wade’s testimony on the relationship, but ignores that Willis effectively ratified those claims in her own testimony.

Willis and Wade are both prosecuting people for the very same conduct of filing false statements with courts and making false statements. The two lawyers testified in tandem but only one was disqualified.

McAfee is no Solomon in this decision. He splits the accused to avoid making the harder decision.

If he disqualified Willis, he would likely have had to disqualify her entire office. That would throw the entire case (and certainly the pre-election schedule) into doubt. So he left her with the choice: “The prosecution of this case cannot proceed until the state selects one of two options. The district attorney may choose to step aside, along with the whole of her office, and refer the prosecution to the prosecuting attorneys’ council for reassignment. Alternatively, SADA Wade can withdraw, allowing the district attorney, the defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.”

He is leaving Wade with no choice at all beyond an appeal. However, Willis will be allowed to place her own interests as the overriding purpose of the prosecution.

Willis would saw baby

In some ways, it is a result that should please no one other than Donald Trump. The defense removed the lead special prosecutor while leaving Willis carrying more baggage than Amtrak.

It does not, however, serve the interests of justice. Willis will now prosecute defendants for false statements as her own questionable testimony is likely to be investigated by the state and the bar. She could still be effectively removed or disqualified. That prospect does not appear to give Willis pause.

Like the first woman in the trial with Solomon, she would rather see the baby sawed in half than give it up entirely.

Jonathan Turley is an attorney and professor at George Washington University Law School.