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Fulton County Superior Court Judge Scott McAfee’s 23-page opinion reads
like a chapter from a paperback novel found at an airport newsstand. The
affair between two prosecutors managing a high-profile case. The trips to romantic places, the dinners, the extramarital sex, the aroma of lies told under oath in open court. But, despite all the indiscretions, McAfee ruled
that Trump’s prosecutor will continue to be District Attorney Fani Willis.

The case of course is actually about Donald Trump and eight others who
will stand trial in Fulton County, Georgia on state RICO conspiracy
charges for trying to overturn the 2020 election. Trump’s infamous
telephone call to Secretary of State Brad Raffensperger, in which he asked
the state official to find him the 11,780 votes necessary to flip Georgia
into his column, is at the heart of the proof.

Instead of defending on the merits, the Trump defendants have sought distraction and delay in order to postpone the trial until after the
election. Whether they will succeed is another story.

The federal case in Washington is snarled in motion practice that has
reached the Supreme Court, and the Mar-a Lago documents case in Florida
has also been delayed before Trump-friendly Judge Aileen Cannon, but the Georgia case was chugging along with four defendants pleading guilty, and
Judge McAfee denying motions to dismiss the core charges in the
indictment.

Then the filth hit the fan. The nine defendants in the case moved to
dismiss the indictment and disqualify Willis, contending that she obtained
a personal stake in the prosecution by financially benefiting from her
romantic relationship with Special District Attorney Nathan Wade, whom she personally engaged to lead the prosecution team. The court found that the District Attorney hired Wade on Nov. 1, 2021 and agreed to pay him $250 an hour, a low hourly rate for a lawyer of his seasoning. There was also a contractually mandated ceiling on a maximum of 60 hours per month.

It is not clear on the record when the romantic relationship began, and it
is not clear when it ended. Willis and Wade testified that it began after
Wade was hired, but there was there was some suggestion in the record that
it began earlier. Judge McAfee found that neither side was able to
establish the time frame by a preponderance of the evidence.

Prosecutors are human beings, and they are subject to the sins of the
flesh like everyone else. So it might be easy to dismiss the defense
motions as a distraction, an exercise of legal gimmickry, to delay the day
of reckoning.

The tactic was classic Donald Trump — demonize the prosecutor; turn the
tables. Special Counsel Jack Smith, Trump says, is “deranged.” New York District Attorney Alvin Bragg is a “criminal.” New York Attorney General Letitia James is “racist.” And all are handmaidens of his political
opponent, Joe Biden.

There was some colorable substance to Trump’s position. Criminal
defendants in our system are entitled to procedural due process, meaning a prosecution free of any conflicting interest. Georgia courts had held that
the “administration of the law, and especially that of the criminal law, should, like Caesar’s wife, be above suspicion, and should be free from
all temptation, bias or prejudice.”

McAfee was appropriately concerned. He held an evidentiary hearing into
the matter, two and a half days of dramatic testimony. Wade testified.
Willis testified. So did Willis’ aged father, a retired lawyer, who said
she, like many Black people, often kept sums of cash in the house for
expenses. Even the former governor of Georgia testified that she had
recruited him to head the prosecution team, but he had turned down the
post out of concern for his personal safety and that of his family. So it
was hard to find a chief prosecutor.

As a starting point, McAfee conceded that a romantic relationship between prosecutors, standing alone, would not indicate disqualification so long
as neither had the ability to pay the other. Defendants argued that Willis
and Wade traveled together between October 2022 and May 2023 on multiple sojourns, with Wade covering many of the related expenses. The
documentable expenses in Willis’s favor totaled $12,000 to $15,000 —
pretty small potatoes in today’s economy.

Though far-fetched, defendants argued that this was a kickback to Willis
of state funds garnered from Wade’s salaried position, for which Willis
had been responsible. Willis testified that she reimbursed Wade for her
share with cash payments, but no one other than McAfee believed her. Of
course, there was no one to testify to the contrary, and the court held
that “the evidence did not establish the District Attorney’s receipt of a material financial benefit as a result of her decision to hire and engage
in a romantic relationship with Wade.” He said: “Simply put, the
Defendants have not presented evidence indicating that the expenses were
not ‘roughly divided evenly.’”

So the record contained insufficient evidence of actual conflict. What
earthly relevance did any of this have to the prosecution of Trump?

Not that there wasn’t some evidence of the appearance of impropriety.
Georgia courts have held that prosecutors may be disqualified over an
actual conflict of interest, and some courts have held that they must also avoid the “appearance of impropriety.” Here, McAfee found evidence of such appearance, as well as an “odor of mendacity” in the testimony.

But, he aptly held that “without sufficient evidence that the District
Attorney acquired a personal stake in the prosecution, or that her
financial arrangements had any impact on the case, the Defendants’ claims
of an actual conflict must be denied.” But he made clear that the court
was not condoning the “tremendous lapse in judgment,” and left
accountability for Willis’s conduct to the state disciplinary authorities.

Judge McAfee, in Solomon-like fashion, ruled that either Willis and her
entire office must step aside or that Wade could withdraw, thereby
preventing any distraction that might compromise the merits of the case.
Wade promptly withdrew, and so we beat on.

A prosecutor may be vulnerable to the sins of the flesh, but as Attorney General Robert Jackson, soon to be a Supreme Court Justice, told a group
of attorneys in 1940: “The qualities of a good prosecutor are as elusive
and as impossible to define as those which mark a gentleman. And those who
need to be told would not understand it anyway.”

James D. Zirin, author and legal analyst, is a former federal prosecutor
in New York’s Southern District. He is also the host of the public
television talk show and podcast Conversations with Jim Zirin.

https://thehill.com/opinion/judiciary/4535855-the-end-of-the-fani-willis- affair/

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