Thanks to Dominic Pino for filling in for me yesterday. On the menu today: Thursday brought a lot of fireworks to a Georgia courtroom, when Fulton County district attorney Fani Willis ripped into Trump’s attorneys, thundering, “You think I’m on trial. These people are on trial for trying to steal an election in 2020,” and insisting that her relationship with prosecutor Nathan Wade was not sufficient grounds to remove her from the case for a conflict of interest. There’s no consensus on whether this is sufficient reason to remove Willis and Wade from the case, but almost every legal expert, left, right, and center, agrees that the whole situation looks terrible. Donald Trump may, once again, be saved by the bad judgment of his enemies.
The Devil, down in Georgia, Is in the Details
When Fulton County district attorney Fani Willis and prosecutor Nathan Wade started their relationship — the date of when that relationship started is in dispute — did they demonstrate a conflict of interest that requires their removal from the case against former president Donald Trump and his allies?
It is now no longer disputed that Willis had a romantic relationship with Wade, the prosecutor she hired to run the cases against the former president.
Willis and Wade said they began the relationship in 2022, after Willis selected Wade to manage the cases, and Wade testified yesterday that the relationship ended in the summer of 2023. Yesterday, a former friend of Willis, Robin Bryant-Yeartie, told the court and Judge Scott McAfee that she had “no doubt” that the two had started a romantic relationship earlier than they claimed in affidavits filed with the court. (Under Georgia law, “False oath to affidavit knowing that it will be used in judicial proceeding constitutes perjury.”)
Separately, Terrence Bradley — Wade’s former business associate, friend, and divorce attorney — had said the relationship started earlier, too:
“Bradley has non-privileged, personal knowledge that the romantic relationship between Wade and Willis began prior to Willis being sworn as the district attorney for Fulton County, Georgia in January 2021,” Ashleigh Merchant, [Mike] Roman’s attorney, wrote. “Thus, Bradley can confirm that Willis contracted with Wade after Wade and Willis began a romantic relationship, thus rebutting Wade’s claim in his affidavit that they did not start dating until 2022.”
Last month, three former U.S. officials argued that a prosecutor can continue on a case even if they face serious ethics questions, provided the alleged misconduct is not germane to the allegations or prosecution of the case itself. Joyce Vance, a former U.S. Attorney; Norman Eisen, former special assistant to President Obama for ethics and government reform; and Richard W. Painter, the chief White House ethics lawyer under President George W. Bush, laid out their argument:
The question here is whether Willis’s and Wade’s apparent mistakes have any bearing on the election conspiracy prosecution in a way the law would require their removal from the case.
The motion filed by defendant Michael Roman seeks primarily to do just that — to disqualify Willis and Wade from further participation in this case. Under Georgia law, however, even if all the factual allegations regarding Willis and Wade were true, there would be no basis for disqualifying them from prosecuting Roman or any of the other defendants in the election conspiracy case.
The key point is that regardless of whether the factual circumstances involving Willis and Wade give rise to separate ethical concerns with respect to his hiring, such questions do not affect the propriety of the prosecution against Roman and his co-defendants. Questions about gifts and related matters go to Willis’s and Wade’s obligations to the Fulton County District Attorney’s office and have no connection to assuring the defendants a fair trial. These allegations are as irrelevant to the trial as allegations in other situations that prosecutors took office supplies for personal use, drove county vehicles for personal errands, or plagiarized portions of their student law review notes. All of those are legitimate issues—for prosecutors’ offices and those with oversight responsibilities to address—but such allegations do not bring criminal prosecutions to a stop or require that cases be transferred to a different office. Defense attorneys cannot use allegations of prosecutorial ethics violations, real or imaginary, that have nothing to do with a trial to delay or force prosecutors off of a case. . . .
Wade’s hourly compensation as a Special Prosecutor does not give rise to a conflict of interest that warrants disqualification because it does not create a financial incentive to seek a conviction rather than prosecute the case fairly. The Roman motion alleges that Wade paid for personal travel for Willis and himself, possibly using funds that he derived from his hourly compensation as a Special Prosecutor. Even if that allegation is true–and even if the sole source of Wade’s funds was his hourly compensation as a Special Prosecutor–that financial arrangement between Willis and Wade similarly does not create a financial incentive for Willis to seek a conviction rather to prosecute the case fairly. In particular, Wade will be compensated the exact same amount of money over the course of the prosecution regardless whether any defendant is convicted or not.
Keep in mind, that was written before yesterday’s testimony from Willis. Yesterday, Eisen concluded on X, “Given the very tough law for the defendants that I explained, if she keeps on she will defeat the motion.”
But Jeremy Stahl and Mark Joseph Stern, Slate’s legal correspondents (and about as far as you can get from Trump fans) see it quite differently:
Willis managed to put forth a set of fairly plausible rebuttals to claims that she violated any formal rules or misrepresented herself to the court. And yet none of her protestations could possibly inspire confidence in a skeptic that she should continue to lead this prosecution. Anyone bringing criminal charges against Trump is bound to face withering scrutiny of their professional and private lives; they must conduct themselves unimpeachably to avoid even a hint of bias or corruption. By failing to disclose her relationship to the court in the first instance, Willis did not live up to that standard. The consequences—for her case, for accountability, for American democracy—are already devastating. . . .
Another complicating factor was that Willis and Wade have a convoluted and difficult-to-prove explanation for the fact that Wade appears to have paid for all of their recent vacations together with his business credit card, allegedly using funds paid to him by Fulton County for his work on the case. Wade testified that Willis paid him back in cash for her share of the expenses, something she insisted upon doing. “If you’ve ever spent any time with Ms. Willis you’d understand that she’s a very independent, proud woman, so she’s going to insist that she’s going to carry her own weight,” Wade testified. “She’s going to pay her own way. It was actually a point of contention [between us].”
This claim may be somewhat plausible, but it’s also unproven; neither Willis, nor Wade could produce documentation of the reimbursement.
This morning, some commentators are raving about Willis’s fiery defense. But Stahl and Stern aren’t convinced that what makes for good television makes for a compelling legal argument that Willis and Wade are still the right people to prosecute the case against Trump:
The district attorney’s embarkation upon strange tangents and rambling monologues is proof in itself that the optics of the situation are not good for her side. No matter what happens to Willis next, a huge amount of damage has already been inflicted on the integrity and legitimacy of this case. All in all, Willis and Wade are asking for an extraordinary amount of benefit of the doubt, which feels very hard to extend given the original undisclosed nature of their romantic relationship itself. Even if everything they say is true, a responsible prosecutor would have immediately informed the court about the romance and let the chips fall where they may. Concealing it from both the court and the public raises the suspicion, fairly or not, that Willis and Wade felt they had something to hide.
If this episode ends with McAfee disqualifying Willis from the prosecution, it will be a spectacular self-own and severely damage one of the most important efforts to hold Trump accountable for his attacks on democracy.
Our Ryan Mills surveyed law professors and legal experts, and there seems to be no consensus on whether Willis and Wade need to be removed, but a wide consensus that the pair seriously weakened their case against the former president. And if Willis’s affidavit is proven to be false, it will be near-impossible for her to continue the case herself.
Let’s observe that this case is being tried in just about the most intensely polarized political environment imaginable. As noted above, it’s not just the inappropriateness of the relationship, it’s the possibility of the false affidavits, the legal and moral equivalent of perjury.
Up in New York, Trump is on trial for allegedly falsifying business records to hide an inappropriate sexual relationship. Down in Georgia, Willis and Wade stand accused of allegedly falsifying an affidavit to hide an inappropriate sexual relationship.
If Judge McAfee chooses to give Willis and Wade a pass, a whole lot of Trump fans — and even some people who aren’t Trump fans–– will see a situation where the prosecutor gets to break the rules without significant consequences, while Trump does not.
ADDENDA: Over in that other Washington publication, I argue that we ought to see the transcript of Joe Biden’s questioning by special counsel Robert Hur as soon as possible. Either Hur is not characterizing Biden’s testimony accurately, or Biden is lying (or misremembering!). Either way, the American people have a right to know — and if the Biden White House doesn’t want the transcript released, we can draw some conclusions about who’s telling the truth and who’s lying.
(Whenever I write something someone on the right doesn’t like, I almost inevitably get some accusation along the lines of, “You’ve gone soft and moved to the left since you started writing columns for the Post!” These people never go to check what I actually write for the Post, and how often I’m telling the liberals and progressives in that readership things that they don’t want to hear.)
In case you missed it yesterday, those Social Security cost-of-living adjustments in recent years add up to serious money, and there’s no excuse for 13 of our NATO allies falling short of that 2 percent of GDP threshold.