AP Photo/Brynn Anderson, Pool
By now you've heard that Fani Willis has not been booted from what's left of the RICO election case against President Trump and more than a dozen other defendants. If you haven't then you'll want to read Chris's excellent piece about it. While PJ Media will report the fall out and next moves, there's more to this 23 page decision than the conclusion. That's what I'll be covering in this piece.
The judge in the case delivered a split-the-baby decision telling the Fulton County, Ga., (Atlanta) District Attorney that she could fire her own office from the case or dump her very special prosecutor from litigating the case against Trump et. al. By the time you're reading this she may have made a decision, but that's not what we need to highlight here.
Judge Scott McAfee, who stands for reelection in mere weeks, was right to have stopped everything to hear arguments on motions to dismiss and others because Fani Willis was having an affair with the arguably unqualified special prosecutor, her boyfriend, Nathan Wade. The defendants alleged she derived some financial benefit from the arrangement and spoke out in public about her prejudices against the defendants to taint the jury pool and by all appearances suborned perjury, but no biggie.
On the way there was clearly suborned perjury, tales of lavish vacations, sudden spates of bad memories, lying to the court, no receipts for money swapping with Wade, and bizarre behavior by the imperious Willis. Doesn't everyone keep $10,000 in cash in their homes and recompense lovers in cash without any proof? Of course they do, by Fani's lights.
The judge said that "In total, Defendants point to an aggregate documented benefit of, at most, approximately $12,000 to $15,000 in the District Attorney’s favor" but decided that wasn't such a big deal because "these expenditures were not meant as gifts and not designed to benefit the District Attorney. Both testified that the District Attorney regularly reimbursed Wade in cash." We should totally take their word for it. Wow.
There was evidence of overnights together when they said they were not dating and then lied about it on the witness stand which I mentioned in the inelegantly, but accurately titled, "Fani's Booty Calls."
According to a cellphone investigator for Donald Trump's lawyers, there were 2,000 voice phone calls and 12,000 text messages in 2021, the year they claimed they weren't dating. Fani's former friend, at whose home she was staying, testified last week that the two were romantically entangled starting in 2019. If either of these testimonies is true, then Fani and Nathan Wade have been caught lying in court. There's a word for that: perjury. In the old days before wokeism that was disqualifying.
The late-night trysts are especially telling. A "heat map" was established using CellHawk analysis to geofence both Willis's and Wade's addresses. It showed late-night travel to Willis's place and then Wade leaving at Oh-Dark-30 in the morning. In 2021. When they claim not to be dating.
But in his ruling, Judge McAfee said this evidence wasn't enough to establish actual conflict of interest. "Unlike an actual conflict, the finding of an appearance of impropriety does not automatically demand disqualification," he wrote in his decision. Indeed, that's the goal post that McAfee decided to move instead of the ethical standard used by the legal profession, the appearance of conflict.
"Canon 6 of the American Bar Association's old Canons of Professional Ethics 2 provided in part: It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts," wrote the University of Washington Law School Professor Robert H. Aronson back in 1977.
He wrote, "the appearance of impropriety can be just as damaging as actual impropriety to public respect for the law and clients' belief in their attorney's loyalty, attorneys must ensure that their conduct does not reasonably appear to have been influenced by conflicting interests."
Professor Robert H. Aronson died in 2021, but we're pretty sure he would have been concerned about Fani and her booty calls.
Conflict isn't a cut-and-dried thing, and the judge ruled that "Defendants failed to meet their burden of proving that the District Attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor."
Put another way, the judge said there wasn't enough evidence of booty calls, trysts, lying on the stand, and other egregious behavior to form actual conflict of interest. Apparently, there was lots of smoke, maybe a few flames, but, in the end, there was no actual O.J. video of the conflagration, so no proof. He didn't say the part about the O.J. video, but that seemed to be the standard of proof required by the jury in the O.J. Simpson case, so I used that term. It seems to apply to the judge here.
It's illegal, unethical, and against the rules of the court for a lawyer to put on witnesses whom they know will lie. The Fulton County DA's office was fully complicit in this, obviously. Indeed there was some evidence to more than suggest that Willis herself had suborned perjury from Wade's bestie, legal partner, and divorce lawyer. But the judge punted the question of perjury.
McAfee said, "[A]n odor of mendacity remains. The Court is not under an obligation to ferret out every instance of potential dishonesty from each witness or defendant ever presented in open court. Such an expectation would mean an end to the efficient disposition of criminal and civil proceedings.”
The judge ruled that Fani's "church speech" when she appeared at a church service after the news of her conflict of interest in the case — selecting her boyfriend as special prosecutor when the personal injury attorney wasn't qualified — and claimed "they" were going after her because of her color, rode right up to the line of impropriety. Indeed, McAfee said this was "legally improper. Providing this type of public comment creates dangerous waters for the District Attorney to wade further into," but he wouldn't sanction her for her apparent attempt to taint the jury pool because the trial was too far away. Oh, we see.
The judge noted that “[t]he administration of the law should be free from all temptation and suspicion, so far as human agency is capable of accomplishing that object," a standard Fani flunked.
Finally, how does a DA who has so deeply compromised and shown herself to be unworthy of her office get the call on who is fired from the case?
The judge had an "answer" to that too. Trump's legal chances weren't hurt by her treachery, he reasoned. "There has not been a showing that the Defendants’ due process rights have been violated or that the issues involved prejudiced the Defendants in any way," he wrote in a gobsmacking claim. He went on. "Nor is disqualification of a constitutional officer necessary when a less drastic and sufficiently remedial option is available."
Trump will likely appeal the ruling. And on and on the anti-Trump lawfare goes.
