Step Aside, Fani Willis

Step Aside, Fani Willis

After a two-day hearing in Fulton County, Georgia, we are where we were before. The defendants, charged by Fulton County District Attorney Fani Willis with conspiring to overturn the 2020 presidential election, attempted to make a case for her disqualification under Georgia law. In my view, they failed. The standard for disqualification has not been met, and the judge should not disqualify Willis.

But that is not the end of it. Willis is a public servant obligated to discharge the duties of her office in accordance with the best interest of the people of Georgia. In this instance, the best interest of the public dictates that she withdraw from prosecuting the case.

As Norman Eisen, Joyce Vance, and I explained in detail before this week’s hearing, a conflict of interest disqualifies a prosecutor from a case only when the prosecutor’s conflict could prejudice the defendant. None of the factual allegations made by the defendants support an inference that such prejudice could exist in this case. In fact, the defendants are enjoying every minute of this side show, which is entirely irrelevant to the merits of the criminal case.

This week’s hearing did not change any of this. Defense lawyers one by one questioned the special prosecutor Nathan Wade and Willis about their relationship for hours, competing with each other to be the Ken Starr of Fulton County. Willis and Wade had been carrying on an extracurricular liaison while working together on prosecuting the election-fraud case, but the defense did not show that the relationship changed the way the case was prosecuted, nor did the defense demonstrate any other prejudice to the defendants. This hearing was the defendants’ opportunity to uncover evidence of prosecutorial animosity toward them, improper conduct by Wade or Willis toward the defense (for example, concealing evidence), or something of the sort. They found only a romantic relationship between two prosecutors that was none of the defendants’ business.

But the broader context here also matters. The charges brought by Willis represent one of the most important cases in Georgia history—indeed, in American history. It is the first time that Georgia has ever prosecuted a former president of the United States and the second time that any state has ever prosecuted a former president. (The district attorney in Manhattan filed an indictment against Trump weeks before Willis.) The subject matter of the case—the integrity of elections—is essential to a representative democracy.

Those who argue against allowing states to prosecute, or even investigate, a president or a former president frequently claim that any prosecution will be political—that prosecutors will allow personal interests and motivations to substitute for strict adherence to the law. Public confidence in the integrity and professionalism of a prosecutor is always important, but even more important when a criminal case is pending against a former president, a candidate for president, or both.

Let’s start with the basics. A boss should not have a romantic relationship with a subordinate. Once the romance starts, the professional reporting relationship ends. That’s the rule in most workplaces. The fact that someone is an independent contractor rather than an employee makes no difference. One does not supervise someone while sleeping with them at the same time. That’s a clear conflict of interest that everyone understands.

Avoiding such conflicts of interest is even more important for public officials whose fiduciary obligation is to the public. Supervising one’s paramour while paying him out of taxpayer funds is unacceptable. Another unconflicted public servant should be asked to assume the supervisory role. That did not happen after Willis began her relationship with Wade.

Whether their romantic relationship began before or after Willis hired Wade to work on the case is secondary. Once they were in a romantic relationship, she had no business supervising his work or approving payments from Fulton County to him. The fact that these payments ran into the hundreds of thousands of dollars, far exceeding Willis’s own salary, makes the conflict of interest worse. The fact that Georgia taxpayers picked up the tab erodes public confidence in the district attorney’s office.

Then there is the conflicting testimony in which a friend of Willis’s contradicted her claim that the romantic relationship began after she hired Wade to work on the case. We don’t know who’s telling the truth on this matter, but the conflicting testimony further erodes public confidence.

There is a likely impact on this case, but it is the exact opposite of the prejudice toward the defendants that they complain about. The jury pool has been tarnished, and some jurors likely will be familiar with the testimony in this week’s hearing. Some jurors may question the ethics and the veracity of the district attorney’s office. The chances of the trial ending with a hung jury, or even an acquittal of some of the defendants, including Donald Trump himself, are higher because of this affair.

To repeat, the defendants have no standing to complain of prejudice from any of this. How often do defense lawyers get to put the prosecutors on the witness stand under oath and ask them questions about their sex life, how much cash they keep around the house, and their personal travel? The prejudice that has arisen out of this episode is against the prosecution, not against the defendants.

The stakes are enormous. If what is alleged in the indictments is true, the defendants engaged in a criminal conspiracy to overturn the 2020 presidential election in Georgia and nationwide. One of those defendants is the former president of the United States and a leading candidate for reelection to the presidency this November. Georgia and the nation cannot afford to have this case heard by a jury poisoned by the irrelevant but salacious details of the personal lives of the prosecutors and allegations that they misused public funds.

And in the end, even if Trump is convicted in Georgia, he could still be on the ballot in November. Voters around the country will not view a conviction obtained by Willis the same as they would have before this scandal arose. Trump’s claims that “everybody cheats and lies” will feed off allegations, true or false, against the Fulton County prosecutors. Some Americans, disgusted with both Trump’s and the prosecutors’ conduct, may simply ignore the verdict.

We cannot take these risks, but unfortunately, this is not our decision to make. Neither is the judge likely to make it, because there are no legal grounds to disqualify Willis.

And this is why Willis needs to do what is in the best interest of her client, the people of the State of Georgia. She should step aside so that someone else can prosecute this case.