![[Fulton County DA Fani Willis]](https://i0.wp.com/outsidethebeltway.com/wp-content/uploads/2024/01/409106080_771124298388135_2273034716693302405_n-1024x672.jpg?resize=1024%2C672&ssl=1)
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://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.
