Under Georgia law, a prosecutor can be disqualified only when there is a conflict of interest that prejudices the defendant. Norman L. Eisen, Joyce Vance and Richard Painter explained:
Under Georgia law, “[t]here are two generally recognized grounds for disqualification of a prosecuting attorney. The first such ground is based on a conflict of interest, and the second ground has been described as ‘forensic misconduct.’” Williams v. State, 258 Ga. 305, 314, 369 S. E. 2d 232, 238 (1988). There is no allegation of “forensic misconduct” in this prosecution. A conflict of interest may arise when the prosecutor has “acquired a personal interest or stake in the defendant’s conviction.” Id. “[A] conflict of interest requires more than a theoretical or speculative conflict. An actual conflict of interest must be involved.”
Having a relationship with someone on your side creates no prejudice to the other side. “Georgia courts have resoundingly rejected romantic relationships between attorneys as a basis for prosecutorial disqualification,” the authors explained. The only grounds for disqualifying Willis would have been a financial conflict arising from Wade’s contract to provide legal services to her office. On that score, the “financial compensation paid to Wade is consistent with well-established practice in Georgia and does not give rise to a conflict of interest warranting prosecutorial disqualification.” That left only one basis for disqualification: Any gifts (e.g., travel) Willis received from Wade that incentivized her to prosecute the defendants.
However, there was no there there. Willis left no doubt that no man paid her way. “A man is not a plan, a man is a companion,” she declared. “I don’t need anyone to foot my bills. The only man who has ever footed my bills completely is my daddy.” She paid Wade back for her half of trips with cash. She explained why she always carried plenty of cash: “If you’re a woman and you go on a date with a man, you better have $200 so if that man acts up you can go where you want to go,” she said. No one contradicted her testimony.
With sass and style, she demolished the accusation that Wade paid for her travel. Social media lit up with “A man is not a plan” posts, many from women who shared their cash-on-hand dating stories.
The conventional wisdom (among a mostly male, mostly White media) pronounced that Willis had irretrievably damaged her case. During Thursday’s testimony, some journalists breathlessly predicted she was doomed when an aggrieved former employee claimed the relationship began before Wade was hired. (Far more credible witnesses subsequently debunked that testimony.) Even more cringeworthy: Mostly White commentators sounded incredulous that an African American woman would habitually carry cash. That spoke to the racial ignorance that too often results from non-diverse newsrooms.
Gwen Keyes Fleming, an experienced litigator and the first African American and the first woman to be elected district attorney in DeKalb County, Ga., told me, “The fight and determination we observed from the stand is the same tenacity with which the DA fights for justice for her constituents. And this is what has produced a #TeamFani [a trending hashtag on social media] groundswell among her many supporters in the community.” Put differently, Willis achieved folk-hero status among many women angered by her ordeal, especially Black women (whose voting turnout exceeds other groups and who sit on juries).
Fulton County Superior Court Judge Scott McAfee has yet to render a decision. However, there was widespread agreement among knowledgeable lawyers that the defendant had not come close to proving a conflict of interest, let alone one sufficient to justify recusal.
Taking a step back, Trump has a habit of demeaning powerful Black women. He has called Willis and New York Attorney General Letitia James, who won an eye-popping judgment of more than $450 million (including interest), racist. He has falsely accused them of letting crime fester. (Crime is dramatically down in Atlanta and New York.) But with Willis’s retort (and James’s smashing victory), they have put him in his place. James proudly posted on social media site X (formerly known as Twitter): “For years, Donald Trump engaged in massive fraud to unjustly enrich himself, his family, and his organization. … Now, he is finally facing the consequences of his illegal actions.”
The legal system does not eradicate all inequities. Wealth allows Trump to hire a boatload of high-priced, if not always competent, lawyers. His threats and disruptive behavior in courtrooms and on social media would likely land an ordinary defendant, at the very least, in contempt of court. Still, unlike the political system, the legal system turns on objective reality, administers accountability and cannot be bullied. Trump might soon grasp that his usual bag of tricks won’t work in court.
Nevertheless, the unseemly hearing rankled many observers. Mimi Rocah, the district attorney for Westchester County, N.Y., posted on X: “Elected prosecutors should be held to the absolute highest ethical standards [and] we must conduct ourselves in ways that expect scrutiny.” However, she warned, defendants “have great incentives to make the story about prosecutors or law enforcement [and] airing allegations in detail publicly can damage a prosecutor’s professional reputation [and] ability to handle a case (which is sometimes the only goal).” She concluded, “This is not a way to treat a public servant, and it is not good for the criminal justice system [and] people’s faith in institutions.”
Why did McAfee, the judge, let the defense go down a rabbit hole, prying into Willis’s personal life? Perhaps he wanted to deny defendants an issue for appeal. That the protracted hearing wound up backfiring on the defendant, however, did not excuse indulging the defense for two full days. It also reflected poorly on McAfee, who failed to appreciate that airing unsubstantiated smears, especially ones tinged with racism and sexism, damages real people and undermines the rule of law.
Fortunately, McAfee is accountable to the people of Fulton County. Like Willis, he will be on the ballot this year. That’s democracy’s greatest attribute: The government is answerable to the people.
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