Trump and Georgia Defendants: Be Careful What You Wish For

My phone has been buzzing quite a lot thanks to the frenzied anticipation: What’s going to happen to Fani?

That would be Fani Willis, of course, the Fulton County district attorney who indicted former president Donald Trump and what seems like a cast of thousands (but is actually 18 other defendants) on, yes, racketeering and 40 other charges in the sprawling Georgia 2020 election-interference case. Today is the deadline Judge Scott McAfee set for himself to rule on the defendants’ motion to disqualify Willis and Nathan Wade — her star-crossed lover and, not coincidentally, the special prosecutor she hired, despite his lack of relevant experience and an alleged lack of required county approval. The Trump case promised to be long-term and lucrative thanks to the blunderbuss way she indicted it. The pair went on various vacations that Wade paid for — though Willis swears she paid him back with the cash that any district attorney would keep stashed around her house (and is why, we’re told, neither of these experienced lawyers has records of the transactions). Acquaintances say the affair has been going on for years; Willis and Wade claim it started only after he’d been hired.

The defense thus claims they must be disqualified over various conflicts of interest — including elevating their own interests (such as self-enrichment and now the need to cover up wrongdoing) over the just disposition of the case — and because they’ve deceived the court, thus compromising its public legitimacy by creating the appearance of impropriety.

So . . . what’s going to happen? I have no idea.

The DA certainly should be disqualified, along with Wade and her entire office, which has jumped in with both feet to defend her unsavory conduct. (A better run office would have brought in other counsel and tried to wall off other Fulton County prosecutors from further taint; characteristic of Willis, her office joined her at the hip, heedless of whether what was good for Fani was necessarily good for Fulton County. As a result, I presume that if she has to go, they all have to go.) But while Fulton County is not a small place, litigation there has the feel of small-town melodrama — politics and ethics are only remotely acquainted, with the former in the driver’s seat and expectations about the latter modest.

Willis has already been disqualified from prosecuting one subject in the case because she headlined a fundraiser for that Republican’s opponent — Willis’s fellow Democrat. It is an elected justice system. Officials are not appointed after being vetted by lawmakers to ensure that they will not politicize the powers of their offices; to the contrary, not only the district attorney but the judges, too, run for election. Judge McAfee was originally appointed by Governor Brian Kemp, a Republican, to fill a vacancy, but he is up for election this year.

Consequently, Judge McAfee must weigh not only whether the evidence establishes a sound basis for disqualification, but also whether disqualifying Willis will cost him his seat if her political base drums up opposition against him. She’s up for reelection — apparently banking on the Madonna theory that there’s no such thing as bad publicity. In any event, her base will turn out, and these are low-turnout affairs.

In recent days, McAfee gave a media interview — a very un-judicial thing to do, but one judges do when their positions are political rather than strictly legal. He says his own electoral vulnerability will have no bearing on his decision, which he volunteered that he started writing before he knew he’d have an electoral challenger. That sounds to me like the sort of thing one says when one is not going to disqualify the DA and wants the public to believe that it’s a merits conclusion rather than a political calculation. But I know nothing about McAfee other than the little we’ve seen in the last four weeks. Maybe — hopefully — he’s just being honest and he’ll call it as he sees it. (In the hearing, he was impressively up on the relevant state jurisprudence, often stumping the litigants regarding the cases they had cited.)

After some initial hesitancy (Trump was not the defendant who first advanced the disqualification motion), Trumpworld is now all in. Willis’s disqualification would be a public-relations coup in a hot campaign season, fueling the storyline that, for now, depicts the Democrats’ lawfare campaign as collapsing of its own overzealous weight.

As someone more interested in the law than the politics of all this, I’d humbly suggest that the Trump folk should be careful what they wish for.

The salacious details of L’affaire Fani has aroused lots of attention about the Georgia case; less noticed is that the problem is the case itself — as a sprawling RICO prosecution and a conspiracy that’s not actually a conspiracy. In a word, it’s a train wreck, as I’ve contended a number of times (see, e.g., here, here, here, and here). The best evidence of this to date, besides Willis’s lumbering indictment, is the plea deals she’s made: four defendants to date, no RICO pleas, no serious crimes, and no prospect of jail time — after all the heavy breathing about how Trump’s half-baked schemes to stay in office had our democracy hanging by a thread.

But remember, as I said early on, that doesn’t mean there was no case here. It means the delusional case Willis brought was bound to start sinking on first contact with competent defense counsel. The facts that trying to overturn an election result is not a crime per se, and ergo conspiring to do it cannot be a crime, does not mean sundry unlawful acts were not committed in the course of seeking a legal (albeit impossible, unjustifiable) outcome.

The one thing we’ve seen through the last four weeks of scandal, which was evident from the way the case was charged, is that Willis and her team are a clown show. If she, Wade, and the Fulton County DA’s office are disqualified, the case may go to competent prosecutors who recognize it for what it is: not one huge, unwieldy wannabe RICO, but a diffuse collection of bumbling initiatives by loosely connected actors, including Trump himself, who wanted to reverse Biden’s victory. They were not a racketeering enterprise, but they may well have done a number of things that, though less egregious, violated the criminal law. Indeed, the four people who’ve pled guilty pled to crimes. No, those charges aren’t RICO or some mega-conspiracy to destroy the United States, but there are felonies which are going to stigmatize those people forever. Their personal and professional lives, as they knew them, will never be the same again.

If real, by-the-book prosecutors ended up taking over this mess and, instead of wholesale abandoning it, narrowed it down to instances of potential false statements, falsified documents, unlawful access to state data, and the like, it would be a much more serious case.