On Feb. 15, Fulton County District Attorney Fani Willis will get her day in court — though not the one that she might have anticipated when a grand jury indicted former President Trump and multiple alleged co-conspirators for attempting to interfere in Georgia’s 2020 election. When she appears before Judge Scott McAfee, who also presides over the election interference case, she will explain why she should not be disqualified from handling that case.
Willis is alleged to be having a romantic relationship with Nathan Wade, one of three special prosecutors she hired to carry out the prosecution of Donald Trump and the others. Her accuser — Georgia political operative Mike Romans — was also indicted in the election conspiracy case. As the Atlanta Journal Constitution reports, Romans’s court filing “offers no concrete proof of the romantic ties between Willis and Wade, but says ‘sources close to both the special prosecutor and the district attorney have confirmed they had an ongoing, personal relationship.’”
As we await the February hearing, let’s not bury the lede: An office affair has nothing to do with the mountain of evidence against Trump and the others.
Everyone paying attention remembers the Jan. 2, 2021, tape recording of the then-president asking Georgia Secretary of State Brad Raffensperger to “find 11,780 votes” — one more than Trump needed to overturn the will of Georgia’s voters backing Joe Biden for president in November 2020.
Along with the Trump 2020 campaign’s well reported, post-election organization of fake elector slates — a charged offense to which Trump lawyer Kenneth Chesebro already has pleaded guilty — that Jan. 2 phone call is the irreducible reality behind the charges brought against Trump and the others.
Willis has compiled compelling evidence to back the grand jury’s indictment. That remains the heart of the matter. And based on what we know, Romans’s disqualification motion is as legally misguided as it is sensational and optically distracting.
That said, Willis has tripped herself up if the allegations are true. As the American Bar Association Criminal Justice Standards state, “The prosecutor should not permit the prosecutor’s professional judgment or obligations to be affected by the prosecutor’s personal, political, financial, professional, business, property, or other interests or relationships.”
Willis has not denied the alleged relationship with Wade. Indeed, she may have indirectly conceded it in a “guest sermon” she delivered on Jan. 15 at Big Bethel AME church in Atlanta. Multiple times she referred to herself as “Flawed. Hardheaded. Imperfect me.”
Acknowledging personal fallibility is the first step toward responsible action. But more is needed in the form of repair; Willis needs to take the hard steps necessary to remedy errors that can undermine the public perception that justice is being done. Unfortunately, Willis’s sermon had the appearance of an ecclesiastical update of what has been called a “modified limited hang out” — an effort to concede as little as possible and see if it works.
Anyone who’s been through “Damage Control 101” knows that such hedged and indirect concessions of what is true are not the way to manage a potential crisis of public confidence. You put the full story out there, take the hit and initiate corrective action. Doing so enables you and the public to move on.
That’s especially good advice for prosecutors. Doing justice requires public trust and avoiding, as the ABA says, “an appearance of impropriety in performing the prosecution function.”
Already, a Georgia law professor has hypothesized in the New York Times that Willis might be disqualified because the entire prosecution could have been a scheme for her to profit personally. That is nonsense. But such commentary illustrates the damage that can be done to public trust.
While no one can expect perfection from Willis, what is required is changing direction.
Madame Prosecutor, respectfully, please stop the hardheadedness. Romantic relationships are not improper per se, but this is not a run-of-the-mill case.
Willis need not resign, but she should immediately “unhire” the person whose hiring has become the source of the problem. She should repay any financial benefits she has received indirectly, if she did. And she should do it now, if she hasn’t already.
Otherwise, the story has the kind of legs that can turn into a long-running nightmare.
Judge McAfee is a former Fulton County prosecutor who knows both the law and the expectations of prosecutors. As to the latter, he is likely to be disturbed if the allegations prove true. The judge’s displeasure, displayed in televised proceedings, will do neither Wills nor the case any good.
As to the law, it does not appear to give the judge reason to remove Willis. Under Georgia precedent, disqualification requires a conflict of interest or some action that seriously threatens to deprive a criminal defendant of a fair trial.
We haven’t seen evidence of that to date. Should it emerge in a worst-case scenario, however, Judge McAfee could remove Willis from the case, disqualifying the entire office and sending the case to the Georgia Prosecutors Council for re-assignment. That could delay the prosecution of Trump by more than a year — or even railroad it entirely.
Willis must do everything she can to minimize even the slightest risk of that possibility. After all, as former federal prosecutor Barbara McQuade rightly reminds us, even if Willis “engag[ed] in a romantic relationship with a subordinate … that fact has absolutely nothing to do with the guilt or innocence of Roman, Trump and their co-defendants.”
By having Wade step down now and taking any other needed remedial action, Willis would ensure that that truth is front and center on her own day in court.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.
Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.