More On The Potential Disqualification Of Fani Willis
More on the potential conflict of interest in Georgia
![[Fulton County DA Fani Willis]](https://otb.cachefly.net/wp-content/uploads/2024/01/409106080_771124298388135_2273034716693302405_n-1024x672.jpg)
Yesterday, I wrote about potential procedural problems facing the Fulton County District Attorney’s Office’s RICO prosecution of former President Donald Trump and his codefendants. The tl;dr version is that one of the codefendants has alleged that DA Fani Willis has financially benefitted from an intimate relationship with Nathan Wade, one of the three Special Prosecutors she contracted to work on the RICO case.
As noted yesterday, in the week that has passed since these issues were raised in a motion by Mike Roman to dismiss the case, Willis has made no official denial about a relationship between her and Wade. Assuming that the two were in a relationship during the prosecution, a question was raised by a few commenters on that thread about why such a relationship would lead to disqualification. As longtime commenter Joe put it:
[I]f [Wade] got paid and then took her on a trip to pursue their relationship with his earnings, that’s his money to do with how he pleases. If there is no relationship and the trips were just pay back for him getting the position, that’s corruption. In this regard, them having an inappropriate personal relationship actual counts against corruption. … If he was legit hired as an independent counsel with no winks and no nods and got paid legit billables for legit work, spending it on his new girlfriend is shitty to his family but not a misuse of public money. If DA saw an opportunity (with or without a sex wink) and said if I pick you, we get trips, that a different thing.
https://www.outsidethebeltway.com/fulton-county-rico-case-against-trump-facing-procedural-challenges/
I did a bit of digging last night and this morning. The motion itself laws out the following argument about an overall lack of disclosure being an issue:
The district attorney’s apparent intentional failure to disclose her conflict of interest to Fulton County and the Court, combined with her decision to employ the special prosecutor based on her own personal interests may well be an act to defraud the public of honest services since the district attorney “personally benefitted from an undisclosed conflict of interest” which is a crime under 18 U.S.C. § 1346
https://www.documentcloud.org/documents/24354598-010824-defendant-michael-romans-motion-to-dismiss-grand-jury-indictment-as-fatally-defective-and-motion-to-disqualify-the-district-attorney-her-office-and-the-special-prosecutor-from-further-prosecuting-this-matter-motion-6
Likewise, I have seen a reference to a statute in Georgia law that forbids a public employee from benefitting from the awarding of a contract. I honestly have not had time to look for it, but this law is quite common in most states. If such a law exists in Georgia, it would also create additional challenges.
Then, this morning, the Daily Beast conveniently (at least for me) posted an opinion piece by Georgia Defense Attorney Andrew Fleischman on the topic. I’ll let him take over the argument:
In 2022, Superior Court Judge Robert McBurney disqualified Fulton County from presiding over the prosecution of Lt. Governor Burt Jones because Fani Willis endorsed his political opponent, Democrat Charlie Bailey. In the order, the judge notes that there was an “actual” conflict of interest. This “does not mean that… Jones has definite proof that an investigative decision was made explicitly to benefit candidate Bailey. This rarely, if ever occurs… the conflict is actual because any public criminal investigation into [then-]Senator Jones plainly benefits Bailey’s campaign, of which the district Attorney is an open… supporter.”
The standard to disqualify Fulton County here is not whether Fani Willis actually made her decisions to benefit Nathan Wade. It’s plausible that she would have made the exact same choices without the personal relationship. But if her choices to extend or prolong the investigation benefit a romantic partner, who is paying for her meals and vacations, that is an actual conflict.
When a Georgia judge was found having sex with a public defender outside the courthouse, the courts did not hesitate to find that this undisclosed sexual contact required new trials for the accused, even if it might have arguably been to their benefit.
Just as here, the guilt or innocence of those accused was irrelevant. The conflict of interest required a new trial.
https://www.thedailybeast.com/why-we-cant-just-shrug-off-the-fani-willis-scandal?ref=home?ref=home
The entire article is worth a read. Assuming there was a relationship, the fact pattern Fleischman lays out is bad enough (including the fact that Wade filed for divorce the ay after Willis hired him) that it seems like a disqualification is possible (if not likely).
Again, drawing on the wisdom of our commenters from yesterday, it was Kathy who rightly wrote:
The thing about high profile, complex cases, is the prosecution cannot afford even one minor screw-up, never mind a major one.
There will be mistakes, because there are always mistakes. But there should never be anything big or substantial, even if only in appearance.
This is most certainly the case. And even though this doesn’t change any of the facts in the actual charging documents, if its true, it’s a gift to the former President and his supporters who have framed this prosecution as a motivated attack.
Ken White made a good point about this a few days ago, which is this is what happens when you have a group of people (prosecutors) who almost always get their way, and are unaccountable to anyone in almost any circumstances (see also, the police). This is the same office that, when some of their filings were described by the Georgia Supreme Court as “bizarre,” did this: https://twitter.com/FormerFultonDA/status/1195092955511558151
And it’s very likely that the DA’s office could have filed a much simpler case for false statements and other similar things against Donald Trump several years ago, but they had to invoke the Georgia RICO law, which makes everything much more complicated.
Quote of the Day.
@Kevin:
As with most things, I tend to agree with Ken White. DA’s/Prosecutors run the gamut (I have known and worked with more than a few in previous roles). At the end of the day, because our state and local governments opt to elect criminal legal system positions, they definitely draw that type of personality It’s always interesting to see the differences between Federal and county prosecutors.
That is a point that Fleischman brought up in his article:
Thanks for digging in to this further. The laws governing this type of situation are interesting, and Willis’ behavior is looking more egregious than I previously thought.
So the comments in August post in respect to overreach by limited shallow experienced local prosecutor in contrast with the Federal prosecution, Smith, were well justified, although of course attacked on identiy politics and party political cheerleading grounds.
@Lounsbury: Are you going for “even a blind hog can find a truffle” here? Because it doesn’t seem to me that this is an example of limited/shallow experienced prosecutor overreaching versus federal prosecution.
But keep up your attacks on identity politics–by identifying the politics you wish to attack. [perplexed emoji]
There is a moderator over at emptywheel.net who has been trashing Fani Willis at every opportunity, even though he is far from being a Trump supporter, since the case was announced.
He is going to be insufferable now. His point was, I think, that county prosecutors should not be doing this kind of thing.
Not, she isn’t careful enough with personal behavior to not taint the case.
@Just nutha ignint cracker:
I remember someone defending a prosecutor with over 25 years of experience would saying they would never try to hide exculpatory evidence.
@Just nutha ignint cracker: It is the perfect example of over-reach as already presented. A simpler and focused case as Fleischman comments have noted could have been brought with much less. Prosecutors like Smith know that in high profile cases with well resourced defendants and under high political stakes and scrutiny (as one rather sees at The Hague) need focus. Experience with a specific kind of case.
The pretence to puzzlement of course is very precious.
Go MeidasTouch
A Grand Jury with zero influence by a strong, black woman prosecutor Fani Willis indicted Trump proving guilt.
Standard prosecutorial procedures (hiding exculpatory evidence) may backfire against well resourced defendants.
Interesting developments which, of course, have no bearing on the guilt or innocence of the defendants – however they do have bearing on whether those accused criminals will have to answer for their actions.
How great it must be to be wealthy and above the law.
@Franklin:
I’m not sure this isn’t just more of Trump world framing. For crying out loud Trump has bent every statute, pushed everything to the line and has dipped toes (more like legs) over it every chance he gets. But judges and prosecutors are terrified that any “i” not dotted or “t” not crossed will get the case thrown out (because the Supremes are counting on some archaic legal hook to hang their opinion to overturn any accountability for Trump on while some of them are gorging on bribe gifts). Not to mention that fact that Trump seems to have all the funds he needs for a couple hundred metric tons of legal process to delay any trial into the next millennia.
Meanwhile he is claiming that any prosecution by any Democrat, never Trumper, or anyone who doesn’t literally bend the knee and kiss his ring is a violations of his constitutional rights.
This isn’t even in the same galaxy of corruption as Clarence Thomas but it’s all we are going to hear about from the Media from now until the cows come how.
But I will say this, Trump is getting special treatment. Any one else would be sitting in jail right now.
@Lounsbury: Huh. I didn’t know Prosecutor Smith had already gotten convictions or pleas in his two highly uncomplicated, super simple federal cases.
Maybe you know something we don’t?
@Paul L.: “standard” Left accusations against prosecutions aside, Mr Smith has experience with international and I do not recall anyone writing of his behaviour including anything of a nature like that. Of course given your identify politics framing (and the strange bit about grand jury indictments proving guilt which reprsents quite the strange misunderstanding of common law and the role of such bodies, although perhaps only the USA retains this archaisism, they are not holdings of guilt but rather potential of crime).
@Rick DeMent: the fact that Mafia bosses violate the law does not mean that anything goes with prosecutions, that is not the rule of law, it is mere vengeance. The same goes in the case of Trump, the power of the state prosecution is a different subject than the criminal acts of criminals.
Trumps legal behaviours are utterly irrelevant to the judgement and holdings relative to a state prosecutor – but many of you are really not engaged in anything other than politcal vengeance (understandable as this may be, it is not law and frankly if followed really becomes Pot & Kettle territory).
Of course normally under your system a state law criminal prosecution is not a matter for the federal opinion so going on about the Supreme court for which you have political issues is fairly irrelevant and mere partisan political diatribe.
@Lounsbury:
That is the Resist TrumpLaw MeidasTouch Michael Popok standard. I am just mocking it.
The link in this snippet appears to be broken leaving me to wonder why “outside the courthouse” is phrased that way. On the court steps? In the bushes along the side?
I could hunt down the original article and find the link there, but I think this might be a case where the mystery is better than the answer.
Fire him, fire her, and let the gears of justice keep chugging along with different people turning the cranks. Surely there’s an assistant DA, and another attorneys who can take up the case.
I guess she probably needs to resign rather than get fired, although the Georgia legislature did recently pass a law so they could fire DAs, which everyone thought was aimed at her for political reasons — I’ve no objection to it being used for practical reasons. Or recuse herself. Whatever.
If she had a defense on the merits, she would have been floating it by now, but instead seems to be actually confirming the relationship.
Whether she is unduly influenced by the finances or not, she should know better and avoid the appearance of taint. As should he.
Two things
1= The requirement that the courts, prosecutors need to cross their Ts and dot their Is is important. It protects the poor from having what little they possess without a day in court and people accused of crimes whether they are rich or poor. Remember innocent till proven guilty?
2- The lack of play this story is getting from the media other than AJC. We’re hearing non-stop about the E Jean Carroll trial but this to me seems more important.
@Bill Jempty: Gee, I dunno. I think that Donald Trump being threatened with expulsion from the Carroll trial because he kept interrupting her testimony is kind of important, too. Though I don’t think I’d expel him if I could order him gagged instead. (IANAL, so I don’t know what is allowed. 🙁 )
@Just nutha ignint cracker:
“Though I don’t think I’d expel him if I could order him gagged instead.”
I saw someone suggest that Trump should be forced to stand in the corner, as if he were talking out of turn in elementary school.
ETA — It was Kathy right here.
It’s obviously a conflict of interest unless you are a conservative justice of the Supreme Court, in which case it’s totally fine to disclose nothing.
@Rick DeMent:
<– this
@Rick DeMent: Egregious or any other adjective is, of course, relative. Of course it doesn’t rise to the level of Clarence Thomas, much less Donald Trump. But I guess I have a bare minimum of expectations for Democrats. For example, not committing a possible crime as Matt documented in the post.
@Bill Jempty:
Really? A court found that Trump’s sexual assault of E. Jean Carroll constituted rape. This doesn’t seem as important as issues pertaining to the legal system confirming our once and possible future president is a rapist.
As are the $2 billion Saudi bribe the Trump family received, Trump having repeatedly and openly made disgusting comments about wanting to bang his own daughter, and Trump having received Chinese and Saudi income as president. All of which are very important but which aren’t getting any significant coverage.
@Lounsbury:
Normally we don’t have narcissistic sociopaths as presidents. All arguments to “history” do not apply to Trump because we never have had to deal with his level of criminality. I mean you could easily come up with 91 more indictments without breaking a sweat.
@Franklin:
I do too, but this is a case where I just not having it. I tired of entertaining a never ending litany of legal “process” derail prosecution of a man with Trump’s level of criminality.
The idea that this situation is equal to some kind of quid pro quo is “Angels dancing on the head of a pin” nonsense.
@Lounsbury:
Look, there can be a lot of debate about strategies, but this is an inaccurate statement–or rather one that belies ignorance about the US Criminal Legal System (which, is ironic given how much you complain when people “ignorantly” attempt to make any comments on domains you are an expert on).
Willis is not inexperienced. Here’s her Wikipedia bio:
This is a very similar history to many prosecutors, including the progression from line prosecutor to Assistant District Attorney to ultimately winning the election for District Attorney. And, in connection to this case and its charging theory, she was the lead prosecutor on a major RICO case.
Further, calling the District Attorney for Atlanta (a top 50 US city in terms of population) a “local” Prosecutor is diminishing as well. Would you have done the same to Alan Bragg who is the “local” Prosecutor for another little known city (NYC)?
Yes, there are major differences in charging strategies between County Prosecutors and Federal Prosecutors. And in general County Prosecutors are more likely to swing for the fences.
And while I personally agree with Andrew Fleischman that a more conservative charging strategy would have made more sense, I don’t chalk this decision up to Willis’ experience (which again is far more deep than you suggest).
@Rick DeMent (and others):
First, the only reason I posted on this in two days was to follow up on the question of “why” this could disqualify the office. The reality of contributing to a blog is that, while I could have updated the previous article, chances are no one would have read it. So I made the call to write another. I don’t expect to do any updates on this until there’s a major new development in this story.
Second, the reality is that if this does disqualify her office, then this is a major story and should be covered.
But the big thing I want to address is this part:
Totally agree. However, and this is the very big “however”, unlike Thomas and the rest of the Supreme Court, there is a system to hold Willis and others at her level accountable for these actions. It’s not a particularly strong system (to @Kevin’s point), but it exists. And that means that she ultimately is held to a slightly higher (again the system is not very strong) standard than the highest justices in the land.
That ultimately doesn’t mean we should be less hard on County Prosecutors (in fact we should be harder as Willis in embroiled in far more scandalous acts around Fulton County prison deaths and extremely long times to trials). It’s a sign activists and voters should be advocating for more oversight of justices at all levels–especially on the Supreme Court.
@Matt Bernius: Shallow. No experience in this type of execution, contra the Federal special prosecutor. So yes shallow. Charging local officials, gangs is qualitatively different than what she faces with Mr Trump.
And yes, a city level prosecutor, Paris, London, or New York is a local prosecutor in the ordinary English language, no matter how thin skinned political reactions might call such “diminishing” but I do get America the land of everyone getting a Gold Star for participation, and not hurting feelings, using plain language instead of inflated marketing language has become uncustomary.
@Lounsbury:
Self-awareness not your strong suit, huh?
@Lounsbury:
Strain your back there on moving those goalposts Mr Dunnig Kruger? So would it be fair for me to call your experience “shallow” and “inexperienced” if you were to start commenting/working on a different area of finance and investment banking (outside of the energy work you currently do)? Asking for a friend.
If this is your criteria, then you must also agree that Latecia James (NY State Attorney General) and Alan Brag (Manhatten District Attorney) both have shallow experience as well–given they have never tackled this high profile of a case and both are going after President Trump and the Trump Organization.
In fact, most AUSAs don’t have experience in this area (because this is very much a once in a generation case). At least with US Law, the closest Jack Smith has previous come to this is the prosecution of John Edwards–a case he famously lost. Granted losses are as important as wins (if not more) for learning, but even for him, he’s working off the map.
Further, as Paul L would be more than happy to point out, being a Federal Prosecutor doesn’t in any way mean that they are going to persue this type of case well or correctly (see his favorite whipping horse: Ted Stevens).
Likewise, this must make Judge McAffee in Fulton County shallow as well since this is a type of case he has never tried before.
The problem is more that you don’t understand enough to appreciate the experience and knowledge of “local” prosecutors and it appears from your writing see Federal prosecutors as being higher on the food chain. That simply isn’t the case–it’s comparing apples and oranges. Its you who seem to be getting hung up on the level.
But that’s what I should expect from a regional investment banker with shallow experience outside of his specific narrow bailiwick trying to comment on state criminal legal issues (because, btw, that’s what Trump is being charged with) in a country he only does limited civil business in.
One final point on this, while I have no interest in defending Willis’s strategy, there are a number of reasons why it made/makes sense–especially if the goal was as much political as securing a conviction. Again, as I wrote months ago, it wouldn’t be my approach. But I can at least understand it–including the use of the grand jury.
Truth be told, I don’t think they chose this strategy to milk the system or specifically to enrich Wade. However, I also think it can appear that was the case and that was the issue.
@Matt Bernius: The goal posts are exactly where they were before mate, and exactly the same as my referential back to August.
If you felt my experience in someting was shallow then that’s a fair comment. Certainly I am not a criminal law specialist at all, and arriving at an opinion by extrapolation from indeed different subject matter.
And if said shallow experience leads to making avoidable errors from misapplication of a certain experience set then that is fair too.
It may indeed be I am wrong, but the clearly evident unforced error and responses to date are of the nature that rather say shallow experience and someone not used to working at a certain level, and worse not sufficiently aware of that.
Ms James may indeed have been of shallow experience (not to take a position there having not given her specific comparative thought) but as a comparative person – and within the identarian politics halalness – has to date given the impression of having rather better taken the measure of the challenge before her in the specific context. So indeed perhaps a useful apple to apple comparision.
Of course one can focus @DK: Oh I am quite aware that the thin skinned identarian Left here are all bound up in all kinds of national sensitivities and rather detest anyone taking a piss out of their inflated posturing.