Comment: In the Trump case in Georgia, the judge's decision on Fani Willis and Nathan Wade was correct

Editor's Note: Norman Eisen served as House Democratic counsel in the first impeachment trial of Trump and as White House ethics chief and ambassador to the Czech Republic during the Obama administration. E. Danya Perry is a founding partner of Perry Law, a former deputy chief of the Criminal Division of the Southern District of New York, a former assistant attorney general of New York State, and chief of investigations for the Moreland Commission. Joshua Kolb is an attorney at Perry Law and has served as a law clerk for the Senate Judiciary Committee.


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Georgia Judge Scott McAfee continued his series of Solomonic decisions, refusing to disqualify Fulton County District Attorney Fani Willis, who is in charge of the case accusing former President Donald Trump and a group of his associates of rigging the state's election. Defense attorneys had requested that she be removed from the case due to alleged conflicts of interest stemming from revelations about her romantic relationship with the private attorney she hired as lead prosecutor, Nathan Wade.

McAfee realized that no actual conflict of interest had been proven that would have disqualified him, even though he criticized Willis for her conduct, as her relationship with Wade looked terrible. To resolve the situation, McAfee told prosecutors that if Willis was to continue working the case, Wade would have to resign. Wade did so immediately, realizing that this was the right thing—indeed, the only thing—he could do.

E. Danya Perry

Although the defendants intend to appeal the verdict, this will not stop the case. Given the strict legal standards required to succeed in Georgia and the evidence McAfee has already heard and evaluated, we do not believe this attempt will succeed.

From the beginning, we recommended that Wade resign to bring the focus back to what this case is about: the mountain of evidence that Trump and his co-conspirators committed one of the most serious crimes in American political history. (Trump and other defendants have pleaded not guilty.) Now Wade has demonstrated his commitment to the prosecution by withdrawing from it.

Portrait of Joshua Kolb.

Fortunately, nothing that happened during that disqualification process diminishes the fundamental strength of the case against Trump and his alleged co-conspirators. Nor did McAfee's earlier ruling, in which he dismissed six of the 41 counts, fundamentally weaken the case. Although he dropped some counts for lack of specificity, he refused to throw out the most important organized crime count – a wide-ranging conspiracy to overturn the 2020 election results – and the key underlying evidence.

We've all heard the tape of Trump saying he just wants to “find 11,780 votes” — which is still part of the charged conspiracy — and Fulton County prosecutors have already secured guilty pleas from four former Trump associates who admitted to violations of Georgia criminal law. Now that the judge has ruled against disqualification, this important case should proceed.

Once it goes to trial, the defense will likely not be allowed to say anything about the disqualification issue during the course of the proceedings. It simply has nothing to do with the facts of the case and the relevant evidence of the alleged conspiracy. And while some have raised legitimate concerns that these allegations could influence jury selection, as trial lawyers we believe this can be overcome. In this era of turbocharged news cycles, people have short memories, and potential jurors who are swayed by disqualification efforts should be able to be weeded out through voir dire, the preliminary questioning of potential jurors.

As McAfee's ruling in Willis and Wade underscores, under Georgia law, a conflict of interest barring disqualification only exists when a prosecutor has a motive to seek a conviction based on a relationship that conflicts with his or her duty to do justice. In previous cases, Georgia courts have definitively rejected romantic relationships between lawyers as grounds for disqualification.

The defense alleged that Willis and Wade hatched an improper scheme in which Wade used his substantial government compensation to finance Willis' travel and other financial benefits.

Relying largely on Willis' testimony, McAfee concluded that “the evidence demonstrated that the financial gain from her relationship with Wade was not a motivating factor for the District Attorney to indict and prosecute in this case.” He also found that the defendants “failed to demonstrate that the District Attorney's conduct influenced or affected the case to the detriment of the defendants.”

McAfee was also correct in pointing out that the evidence did not conclusively establish that the relationship between Willis and Wade began before Wade was hired. This contradicts the defense's claims that the prosecutor hired her boyfriend and refutes the theory that she did so to gain an advantage for her partner.

Moreover, it is not uncommon in Georgia for private attorneys to be hired to supplement state resources, and McAfee noted that the $250 hourly rate Wade is being paid is a “relatively low amount.” Nor does any joint travel by Willis and Wade create a conflict of interest — since, like Wade's compensation, it had no influence on Trump's prosecution.

McAfee found that Willis and Wade's testimony that they shared the expenses of these trips was “corroborated by other evidence” and “was not so incredible as to be inherently implausible.” During her testimony, Willis had stated that there was no written evidence of how she shared the expenses with Wade because it was her practice to pay in cash. We found her explanation credible and particularly compelling. The authors include children and grandchildren of Holocaust survivors. Our families had large reserves of cash and often paid with it – a practice that grew out of their historical experience.

Special Prosecutor Nathan Wade speaks during a hearing in the election meddling case against former President Donald Trump at the Lewis R. Slaton Courthouse in Atlanta on January 12.

But the lack of any legal grounds for disqualification hardly constitutes a free pass for Willis or Wade. As McAfee admitted, “legitimate questions about whether the District Attorney and her hand-picked SADA chief [Wade] The fact that they told the truth about the timing of their relationship supports the finding that this may have been improper conduct.”

The appearance of impropriety could threaten “confidence in the legal system itself,” he noted, and could lead the public to falsely but “reasonably believe that the district attorney is not exercising her independent professional judgment, completely free from compromising influences.” While we disagree with the judge on this point, Wade's swift resignation was the right move.

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It is imperative that the trial be scheduled quickly. The case does not need to be delayed by Wade leaving the team – the very capable group of Assistant District Attorneys and the other prosecutors who have been working this case for a long time can continue their work. The Fulton County District Attorney's Office is critical to resolving the charges related to the 2020 election – allegations that strike at the heart of our democracy and abuse of power. Therefore, the trial must begin as soon as possible so that voters know Trump's role before they cast their votes again in a presidential election where he is on the ballot.

This article has been updated with the latest news developments.