Thursday in Atlanta, Fulton County Superior Court Judge Scott McAfee will hold a hearing on the merits of a motion to disqualify the elected district attorney of Fulton County, Fani Willis, from the Trump-related racketeering cases. For the reasons we explain below, this is not a difficult decision. He should grant the motion and remove Willis, her lover Nathan Wade, and the entire Fulton County District Attorney’s Office from the cases and send them to one of the other 48 district attorney’s offices in the state that can decide what, if anything, to do with them.

The motion, filed by attorney Ashleigh Merchant on behalf of her client Michael Roman, and joined by other defendants, seeks to remove not only the controversial Willis from the case, but her lover, Nathan Wade, whom she hired as a “special prosecutor” in the sprawling RICO cases against Roman, Donald Trump, and over a dozen other co-defendants.

The gravamen of Merchant’s motion to recuse are the following allegations, any one of which, if the judge finds to be true, is more than sufficient reason for him to recuse Willis et al.:

  • Willis used the money she got from Fulton County to hire extra prosecutors to clear the COVID backlog of cases to instead hire a private attorney, Nathan Wade, to handle the RICO cases against Trump and others, misleading Fulton County commissioners.
  • Willis failed to get permission from those commissioners to even hire Wade in the first place, which was required by law.
  • Wade took his oath of office, but his oath was required to be filed with the court, yet it was not filed until long after he obtained the indictments against Trump and others.
  • Willis paid over $750,000 to Wade for his legal services, even though he had not tried or defended a RICO case in his legal career.
  • Willis and Wade had a romantic, sexual relationship that started before she hired Wade, her subordinate. 
  • Willis benefitted from hiring Wade by traveling with him on romantic excursions to California, Florida, and two cruises that were not work related, which raises not only ethical questions but possible violations of state and federal law over receiving kickbacks from a vendor for the county.

Since this original motion was filed, the defendants have raised additional concerns in new motions over even more ethical violations from Willis. Willis attacked the defendants publicly at her church in a sermon in which she claimed that racial animus was the reason for the attacks against her with these motions over her ethics lapse and potential violations of the law.   

That is a potential violation of the professional code of conduct that governs lawyers in Georgia; namely Rule 3.8(g) and Comment 5.

The rule and comment prohibit prosecutors from making public statements “except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.” They also require prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

“In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused,” the comment explains.

Willis’ statements from the pulpit violate this rule as they substantively claim that those filing the motions for her recusal are racists and therefore certainly have the potential to inflame public condemnation of the accused, former President Trump and his co-defendants.

The second violation stems from Willis’ emergency motion regarding a subpoena from the legal team of Joycelyn Wade, the wife of special prosecutor Nathan Wade, demanding Willis testify in the Wades’ divorce proceedings.

In the motion to quash the subpoena, Willis accused Joycelyn Wade of interfering and obstructing Willis in her role as the prosecutor in the Trump case. Willis claimed that the subpoena was “an attempt to harass and damage her professional reputation,” and that Joycelyn Wade is seeking it “in an unreasonable manner to annoy, embarrass, and oppress the deponent.” Her motion then requests that the court allow Willis “180 days to complete a review of the filings in the instant case, investigate and depose relevant witnesses with regard to the interference and obstruction” of her criminal prosecution.

This language heavily implies that Willis is seeking to bring criminal charges against Joycelyn Wade.  That claim, according to the defendants, violates Rule 3.4(h), which states that a lawyer can’t “threaten to present criminal charges solely to obtain an advantage in a civil matter.” Willis, say the defendants, was clearly seeking to obtain an advantage for herself and her lover in this divorce case by preventing her potentially damaging testimony. It seemed to work since shortly after Willis filed her motion threatening criminal charges, the Wades settled their divorce case.

Judge McAfee is, no doubt, keenly aware that prosecutors have a higher ethical duty than all other attorneys. More is expected of them because they play a vital role in the administration of justice in our country. How the public perceives their local prosecutor matters, as they must be beyond reproach in all that they say and do. 

According to the American Bar Association, “The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court… The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” The ABA notes that prosecutors “should act with integrity and balanced judgment,” and that they have a “heightened duty of candor to the courts and in fulfilling other professional obligations.”   

Willis has already been removed from prosecuting a different case. Judge Robert McBurney of the Fulton County Superior Court forbade Willis from prosecuting Burt Jones, a candidate for lieutenant governor, because Willis was a featured guest in a fundraiser for his Democratic rival in the same race at a time when she was targeting Jones with her grand jury investigation and had named him publicly as a target.  Judge McAfee can, and should, take judicial notice of that fact during the hearing.

Judge McAfee must develop a strong factual record before he rules on the motion. In doing so, he needs to keep in mind that prosecutors are fungible. The integrity of the system is vastly more important than who represents the state as the prosecutor. Furthermore, the judge should, and no doubt will, be cognizant of the fact that he should rule based solely on evidence of possible misconduct, misfeasance, or malfeasance on the part of Willis and Wade, not on the underlying merits or lack thereof of the charges in this case. 

All trial judges (one of us—Stimson—was one) seek to protect and preserve the record of a trial so that if and when a case goes up on appeal, the case does not get overturned for any reasons related to the how the judge handled the case. If the allegations against Willis and Wade are found to be true, but Judge McAfee denies the motion, and the case results in convictions, there is a substantial likelihood that his denial will be one of the first complaints on appeal. In other words, if he denies the motion, he is handing the defense a ripe issue for appeal. If he grants the motion, he takes that issue off the table, even if there is an appeal. Trial judges don’t like to be overturned on appeal.

In developing the record Thursday, McAfee should seek to establish, at the very least, the following facts:

  1. When did the sexual/romantic relationship between Willis and Wade begin?
  2. What office policies were in place at the time concerning relationships between supervisors and subordinates?
  3. How much money did Willis’s office pay Wade, and when did those payments begin? What is the name of the bank and what account was the money deposited into?
  4. What did Wade and/or Willis say, at any time, regarding (a) the nature of their romantic relationship and (b) when the relationship began?
  5. What has Willis said, in any place, regarding the relationship and/or the case that falls outside the acceptable statements about a case per the ABA and Georgia rules? 
  6. How much money did Wade and Willis use for their romantic getaways? When and where did they travel? What bank accounts were debited for the trips? 
  7. What proof is there that Willis got permission to spend COVID money to hire a “special counsel”?  When did she get approval for hiring and paying Wade from the county commissioners?
  8. When was Wade’s oath of office registered and where? 
  9. Why did Willis threaten the wife of her lover with criminal charges in a civil case?
  10. Why did Willis violate the rule against extrajudicial statements by attributing racial animus to the defendants?

The answers to these questions are key to Judge McAfee’s consideration of the motion to recuse. If any of these allegations prove to be true, especially if the romantic relationship between Willis and Wade preceded her hiring of Wade, the judge has more than sufficient grounds to grant the motion. The appearance of impropriety matters, especially when it comes to elected prosecutors. 

Finally, if Judge McAfee grants the motion, the cases simply get transferred to another district attorney’s office in the state of Georgia. There are plenty of other criminal cases in Fulton County for Willis and her prosecutors to handle. Willis has no one but herself to blame if the judge grants the motion. 

One of the authors, Hans von Spakovsky, is licensed to practice law in Georgia and is a former county election official in Fulton County.

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