A Fulton County Superior Court judge ruled on March 15 that Fulton County District Attorney Fani T. Willis can remain as prosecutor on the Georgia election interference case against former president Donald Trump and 14 of his co-defendants — but only if the special prosecutor she hired, her boyfriend Nathan Wade, is removed.
Fulton County Superior Court Judge Scott McAfee issued a 23-page order. On page 17 of the order, it states the following:
“Ultimately, dismissal of the indictment is not the appropriate remedy to adequately dissipate the financial cloud of impropriety and potential untruthfulness found here. See Olsen v. State, 302 Ga. 288, 294 (2017) (“Dismissal of an indictment is an extreme sanction, used only sparingly as a remedy for unlawful government conduct.”) (quoting State v. Lampl, 296 Ga. 892, 896 (2015)). 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. Nor is disqualification of a constitutional officer necessary when a less drastic and sufficiently remedial option is available. The Court therefore concludes that the prosecution of this case cannot proceed until the State selects one of two options. The District Attorney may choose to step aside, along with the whole of her office, and refer the prosecution to the Prosecuting Attorneys’ Council for reassignment. See O.C.G.A. § 15-18-5. Alternatively, SADA Wade can withdraw, allowing the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.”
But will McAfee’s decision be rendered moot?
Willis now faces another hurdle as a result of a law Republican Georgia Gov. Brian Kemp conveniently signed into law on March 13. It’s a law that creates the Prosecuting Attorneys Qualifications Commission and immediately gives it power to discipline and remove prosecutors. Many see it as a nakedly shameless Republican partisan backup plan to protect Trump — in case McAfee found in Willis’ favor.
Now that McAfee has, Willis might have a much harder obstacle to overcome in keeping this commission from intervening against her. Kemp tried to frame his decision to sign the bill into law.
“This legislation will help us ensure rogue and incompetent prosecutors are held accountable if they refuse to uphold the law,” he said.
But clearly, given its timing, Kemp is being disingenuous because this law is about far more than that. While McAfee took weeks to deliberate over legal precedents and weigh considerations about the appearance of impropriety, this law excuses the commission from considerations of fairness. With the quick stroke of a pen, the commission has broad powers to remove a prosecutor if they simply don’t like what he — or in this case, she, meaning Willis — is doing. Don’t be surprised if the commission, with “woke prosecutors” in its crosshairs, does exactly that. What recourse Willis would have in that event isn’t clear.
Willis has blasted the creation of the commission as racist.
“This bill was never deemed necessary until a historic thing happened in 2020, and let’s just talk about it and tell the truth,” Willis said. “In 2020, we went from having five district attorneys that are minorities to 14 that are minorities.”
In the hearing before McAfee, Willis survived the Trump defense team’s extreme — and at times, legally questionable — attempts to smear, humiliate and discredit her. They tried to assert that the only reason Willis was bringing charges against Trump at all was because it was financially lucrative. That’s how all the scandalous revelations about her romance with Wade — to whom she gave a well-paid spot as special prosecutor — were dragged into the public spotlight.
McAfee, however, decided that none of the Trump team’s arguments was sufficient reason to remove Willis from the case. Though McAfee did chide Willis for a lapse in judgment concerning the inclusion of Wade on the prosecutorial team, he summed up his decision on the final page.
‘Legally insufficient’ to remove Willis
“Any distractions that detract from these goals, if remedial under the law, should be proportionally addressed. After consideration of the record established on these motions, the Court finds the allegations and evidence legally insufficient to support a finding of an actual conflict of interest. However, the appearance of impropriety remains and must be handled as previously outlined before the prosecution can proceed. The Defendants’ motions are therefore granted in part and denied in part,” McAfee wrote.
It is a huge relief for Willis, who found herself in the unfamiliar position of defending herself against charges instead of bringing them. As she fended off intrusive question after intrusive question, she bristled with anger at Trump’s lawyers and McAfee chided her for some of her outbursts. But even that did not sway him against her.
In the end, Trump’s lawyers weren’t able to persuade McAfee that Willis had too much baggage — too weighty an appearance of impropriety — to fairly prosecute the case.
There was no immediate public reaction from Willis, but rolling out will continue to monitor for her comments.
With this ruling out of the way, Willis said she would like to bring the case by August. Trump’s first attempt to delay the case until after the 2024 presidential election in November thus has been thwarted. The former president finds himself in the uncomfortable position of defending himself against charges on three legal fronts — in Georgia, in Florida and in New York.
However, there also remains the likely prospect that Trump’s lawyers will appeal McAfee’s finding, if for no other reason than the delay it would cause — which has been his strategy the whole time.
