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Yesterday, we got this message about our items on Fulton County DA Fani Willis from reader V.S. in Charlottesville, VA:
I've been surprised by the bias you have shown in your writing on this without consulting other sources. Everyone reading your site is familiar with the bias women face, especially minority women, when it comes to temperament versus men.
Did DA Willis make potentially bad personal mistakes? Yes. However, from what I have viewed of the hearing, and what legal experts have said on this topic, the defense attorneys have not made their case that the relationship somehow tainted/biased the case against the defendants. The last several minutes of the hearing on Thursday that I viewed were quite dull and boring. I didn't see the early parts of the hearing, since I was at work. The discussion I heard was how the personal relationship ended well before the DA filed (not sure if that is the correct term) the charges in late August 2023. The parts I heard made Willis sound quite believable, especially when she couldn't even identify which continent the Bahamas and Belize were even on compared with Nathan Wade claiming he had visited six continents in his life. I even had to think about that, since the Caribbean and Central America are not continents on their own.
Let us start by addressing a couple of things in the first paragraph of that e-mail. First, we do not have any bias here because we don't have any opinion here. Second, we always read a LOT of sources, and we certainly have done so here. That said, it is clear we have not effectively made our point here, so we're going to give it another try. This will also give us an opportunity to run a couple of letters we really wanted to run on Sunday, and then weren't able to because there was no Sunday posting.
There are two potential standards by which Judge Scott McAfee might judge Willis, as he makes his decision (next week) about whether or not she can stay on the case. The first standard is: Did she take actions that harmed the defendants? If the answer is "yes," then her removal from the case is a slam dunk. However, barring any new revelations, the actual answer here is "no." We will now turn it over to two lawyer-readers to explain. First, A.R. in Los Angeles:
In response to your items and the answer to the question on the claimed conflict of interest in the Trump Georgia case, it's important to remember that, under Georgia law, the alleged conflict has to harm the defendant in some way such that their due process rights are affected.
Georgia law very narrowly construes what constitutes a conflict of interest on a motion to disqualify a prosecutor. There has to be an actual conflict that serves to impair the defendant because of a personal stake in the outcome of the prosecution. So, what is a personal stake in the outcome? We already have one example from this case—you may recall that Judge Robert McBurney disqualified Fani Willis from prosecuting now-Lt. Gov. Jones because at the time he was a candidate for that office and Willis had very publicly endorsed his opponent, Charlie Bailey, and donated to his campaign. Prosecuting Jones, then, would benefit Bailey, which presented a conflict of interest given Willis' support for him.
Here, the defense has not alleged any such credible conflict. The logic, such as it is, seems to be this: Willis brought this case against Trump so she could hire her boyfriend, who would then take her to Belize on the taxpayer's dime. That is not a "conflict of interest" under the statute that warrants disqualification. It may be unethical and she may have to answer to her office, but it doesn't impact the defendant or give her any kind of personal stake in the outcome of this case. In fact, arguably, it weakens her case if he's as unqualified as everyone says. By this logic, anytime a prosecutor took a co-worker out to dinner, they could be disqualified. It's too attenuated to qualify as an actual conflict. As Just Security notes, "Wade's hourly compensation as a Special Prosecutor does not give rise to a conflict of interest because that fee arrangement does not create a financial incentive for Wade [or Willis] to seek conviction rather than justice." He's being paid whether Trump is convicted or not.
Moreover, Georgia courts have held that married couples on opposite sides of a prosecution are not disqualified, let alone those on the same side. It's presumed that such intimacy will not interfere with their professional obligations. And their financial arrangements are not a basis of inquiry.
And by the way, I did see Willis' testimony and she was not "unhinged". That term used here is sexist and inaccurate. She was forceful and understandably angry.
What I saw was eerily reminiscent of Judge Lance Ito's courtroom in the O.J. Simpson trial. McAfee let his courtroom be turned into a circus. He should know very well that these allegations, even if they're all true, do not meet the standard for disqualifying anyone. Next thing we know the judge will be giving the jury a tour of Mar-a-Lago.
This article does an excellent job explaining the relevant law, which has been conveniently omitted in most of the reporting.
And now, R.E.M. in Brooklyn, NY (with some bonus commentary about the New York trial):
A few points about the New York and Georgia court cases. I recommend reading the last two pages of Judge Arthur Engoron's opinion, which contain the orders based on the first 90 pages of facts and reasoning. The most striking thing to me is that the verdict reprieves the Trump entities from the corporate "death penalty" the court had imposed in its September 2023 summary judgment decision—their business certificates (i.e., licenses to do business) will not be revoked now, though the court could revisit that penalty if Barbara Jones, the Independent Monitor, recommends it based on further shenanigans, or the Attorney General can provide "substantial evidence" of its necessity.
The ruling also does not deprive the Trump family of their ownership interests. That means that even though they cannot operate their entities, they presumably could still vote for new directors who could appoint new officers, so their hands would still be in the business. That said, I suspect that Monitor Jones would have a say if the Trumps attempted to put strawmen or other stooges in charge.
There is also a prohibition on applying for loans for three years from institutions registered by the New York State Department of Financial Services, but that strikes me as somewhat toothless. Many, many banks are regulated federally, not by the State of New York, including Deutsche Bank's U.S. activities. If the Trump assets aren't already mortgaged to the hilt, Trump should be able to find a lender who would post a bond for him.
Regarding the Georgia hearing, I cannot disagree with you more strongly about the legal effects. Defendants have the burden of proof on a motion to disqualify to show a conflict of interest that prejudices them. Here, the theory of prejudice borders on the absurd: Willis decided to prosecute 19 people (four of whom have pleaded guilty) not because they committed crimes, but because she wanted to put her boyfriend on the payroll so she could receive kickbacks in the form of free vacations. Is there any not MAGA-fanatic who heard the Trump-Raffensperger call and didn't think, "Wow, that's extortion"? Both a special and a regular grand jury found probable cause to believe these crimes occurred. To find prejudice, you would have to conclude that Willis would not have prosecuted these defendants but for the boyfriend-kickback scheme. That's nuts.
Factually, the entirety of the evidence defendants put on to prove a pre-hiring relationship consisted of the impressions of a disgruntled former employee and friend of Willis's. There is no smoking gun—like testimony, a document, or a recording of Willis saying, "Yeah, Nathan and I have been hooking up since 2019." Neither Willis's ex-friend nor Wade's ex-lawyer so testified. If I were a defense lawyer who signed papers alleging things like Willis and Wade cohabitating in 2019 or 2020, I would be worried right now about getting sanctioned for filing frivolous papers.
There is no doubt that Willis should not have taken up with her employee Wade, but that's because it created a needless distraction and looked bad in the court of public opinion. But ultimately, so what? On the facts and arguments presented, it is of no legal significance. And as an aside, I'd point out that people regularly do foolish things in matters of the heart; let they who never have, cast the first stone.
Thank you, A.R. and R.E.M., for the benefit of your expertise.
But that now brings us to the second standard by which Willis might be removed from the case: Are the optics here so bad that it undermines the integrity of the prosecution? Particularly given that we're dealing with a defendant in Donald Trump who is claiming "witch hunt" and who could use any whiff of impropriety to goad his followers into violent action?
Let us be very clear here that Willis clearly has created bad optics, and also that optics are not actually a basis for removing her (if you doubt it, reread the above paragraphs). That said, judges are human too, and, as you may have heard, have been known to rule from the heart as opposed to ruling from the law. When that judge is a registered Republican, and a Federalist Society member, and has allowed his courtroom to be turned into a "circus" (per A.R.), then you have at least some reason to be leery.
And it's not totally crazy to think that Willis has compromised herself to the point that she should step down. See here, here and here for examples of lawyers making that argument. If McAfee concurs, and he's willing to interpret the rules "creatively," then she could well be gone. Even if it's a wrong decision, and even if there's an appeal, and even if that appeal is successful, then it burns through a bunch of time, which is exactly what Donald Trump wants.
We have absolutely no prediction about what will happen. We have absolutely no opinion about what should happen. All we know is that there's enough uncertainty here that readers should not be surprised by whatever decision McAfee hands down. And THAT was our point. (Z)