The Fulton County DA’s continuing participation in the case brings discredit to it, increases the likelihood of more delay, and could lead to acquittals.
Okay, I’ll admit it: I didn’t have Tennessee Williams on my reading list today. But I did read Judge Scott McAfee’s opinion that scathes Fulton County District Attorney Fani Willis while nevertheless allowing her to continue running the RICO prosecution against former President Donald Trump and 18 others. I would thus observe, as a former prosecutor, that if a judge is talking about you when he describes the “odor of mendacity” wafting through the courtroom, you ought to leave the proceedings voluntarily . . . and maybe start thinking about your next career move. Your useful time on a case is over.
I said in the post previewing today’s Georgia state court ruling that Judge McAfee seemed to be signaling that he would pull up short of disqualifying Willis. That, in the event, is what happened. As our Ryan Mills reports, McAffee allowed Willis to remain on the case as long as she removes her assertedly former lover, Nathan Wade, as special prosecutor.
Still, I expressed hope that McAfee would base his decision not on political considerations but his best judgment. That needn’t have meant that he agreed with me that Willis had to go; no matter how he came out, I wanted the rationale to be cogent and compelling. That, in the event, is not what happened.
McAfee’s ruling is tremulous. There is undoubtedly a political reason for that: He, a Fulton County judge who presides over cases brought by the DA’s office, did not want to make a formal finding that the DA lied, although the evidence — even in his halting recitation of it — screamed out that she did. So instead, he described the “odor of mendacity” that lingers after the spectacle of a hearing that featured Willis’s “unprofessional” testimony and “tremendous lapse in judgment”; yet, he couldn’t bring himself to say for sure that she lied — though he pointedly implied that various legislative probes and professional ethics inquiries were apt to take that step.
Alas, the judge wants to have it both ways. He wants you to believe that he knows the DA’s testimony was perjurious (in collusion with the testimony of Wade). But he is loath to formally rule that it was — a ruling that would have ramifications for all the cases Willis brings before the county court, not just the Trump case.
Obviously, as Willis collaborated with Wade in the story they presented to the court in trying to beat back allegations of self-dealing and dishonesty, the taint this leaves on the prosecution cannot be purged by removing only one of them. McAfee seems to think his job is to cure the appearance of impropriety in the prosecutor’s office, and that this can be accomplished by subtracting Wade. The judge’s job, however, is not to mind the prosecution’s reputation; it is to uphold the public integrity of the court and its proceedings. They are compromised by the continued participation of a chief prosecutor who is elevating her own interests over those of both the case and Fulton County, and who may find herself under investigation for crimes at least as serious as she has charged.
Willis’s ethical deficiency was illustrated by the way she handled the disqualification hearing: Rather than protecting her office by appointing or retaining independent counsel to represent her, Willis had her office defend her as if her personal interests and Fulton County’s interests were the same (and promptly undermined even that cozy arrangement by insisting on testifying, to the apparent surprise and dismay of her subordinates; as McAfee recounted, it was an indecorous performance). The judge correctly reasoned (as I suggested in the post) that if Willis had to be disqualified, her entire office would have to be disqualified — not just Wade.
McAfee acknowledged that, even if Wade were recused, there would still be lingering questions about Willis’s trustworthiness. Well, yes, that is why she should be disqualified. Her continued participation projects the appearance of impropriety that persists in staining the proceedings. Going forward, she will be under intense scrutiny — including potentially from state and federal prosecutors who may colorably suspect her of fraud and perjury. Consequently, her interests and the county’s interests could conflict, which in turn would undermine the court’s legitimacy as the guarantor of a fair and just trial.
Of course, there’s the law and then there’s the practical fallout of a legal decision. Even if McAfee was wrong to deny the defendants’ motion to disqualify Willis, her continued leadership of the prosecution is a boon for the defense.
McAfee’s opinion is a devastating condemnation of the DA’s judgment, professionalism, and candor. She will inject discredit into the state’s effort — she is, after all, the boss, not the fourth chair. In the public mind, she is the face of the prosecution. As such, she bolsters Trump’s contention that the lawfare campaign against him is bad-faith partisan politics. Moreover, because the disqualification ruling is a split decision, it could be appealed by either or both sides; that would facilitate Trump’s strategy of delay. And the episode further illustrates what was already apparent from the sensationalism that accompanied the sprawling RICO indictment, followed by the slap-on-the-wrist pleas doled out to four defendants so far: Willis does not appear to be up to a prosecution of this complexity — or, at least, a prosecution she has made far more complicated than it needed to be.
Trump said he wanted her off the case. He is better off with her on the case.