Editor’s Note: William Cooper is the author of “How America Works … And Why It Doesn’t.” He is a California-based litigator who works on civil and criminal cases. Follow him on Substack @williamowencooper. The opinions expressed in this commentary are his own. Read more opinion at CNN.
CNN
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While presiding over the investigation and prosecution of former President Donald Trump and 18 of his allies for attempting to reverse Georgia’s 2020 presidential election results, Fulton County, Georgia, District Attorney Fani Willis has made two severe lapses in judgment — two too many.
In June 2022, she held a fundraiser for the political opponent of Republican Georgia state Sen. Burt Jones, one of the Trump allies targeted in her investigation. Willis had announced the investigation over a year earlier in February 2021.
“The optics are horrific,” Fulton County Judge Robert McBurney said about the fundraiser before disqualifying Willis and her staff from pursuing charges against Jones in July 2022. (While a separate prosecutor may investigate Jones, who has denied any wrongdoing, no one has yet been selected.)
More recently, Willis admitted to having a “personal relationship” with Nathan Wade, a special prosecutor she hired to help with Trump’s prosecution. Her admission came in response to Trump co-defendant Michael Roman’s court filing claiming Willis and Wade had a “clandestine” relationship, seeking to remove them from the case.
A hearing is being held Thursday on the request to remove Willis for allegedly engaging in an improper romantic relationship that amounted to a conflict of interest. The co-defendants in the case are also trying to get all charges dismissed.
As Wade recently explained in a sworn affidavit, he and Willis have vacationed together and shared the expenses of their travel: “At times I have made and purchased travel for District Attorney Willis and myself from my personal funds. At other times District Attorney Willis has made and purchased travel for she and I from her personal funds.”
As of last month, moreover, Wade had billed Fulton County over $650,000 for his work on Trump’s case over the past two years. Thus, in one of the biggest criminal cases in United States history — the prosecution of a leading presidential candidate in an election year — a lawyer having a romantic relationship with the lead prosecutor is getting paid large sums for his work.
The optics are, again, horrific.
But this case isn’t about Willis’ regrettable mistakes. It’s about Trump’s alleged campaign to fraudulently reverse Georgia’s presidential election results. (The former president has denied all wrongdoing.) The allegations against him are extremely serious. For example, on January 2, 2021, while still the sitting president, he pressured Georgia Secretary of State Brad Raffensperger to come up with more votes. “I just want to find 11,780 votes,” Trump told Raffensperger. “And the people of Georgia are angry, the people of the country are angry. And there’s nothing wrong with saying, you know, um, that you’ve recalculated.”
It’s essential that the Fulton County prosecution not descend into a diversionary circus where the focus is on the prosecuting team’s misjudgments instead of the defendants’ misdeeds. Willis and Wade should voluntarily recuse themselves and allow other prosecutors to run the case.
This is critical for three reasons. First, Willis and Wade’s continued presence would create huge distractions as the trial approaches. The prosecutors should be focused on making their case in court, not managing rolling media frenzies surrounding extraneous matters.
Second, Willis and Wade stepping aside would limit the fallout over Wade’s invoices, something that should be getting more attention in this whole controversy. Wade hasn’t just billed Fulton County over $650,000 under Willis’ supervision; he’s done so in irregular fashion. For example, Wade billed 24 hours for the case in a single day. Standing alone, Wade’s billing practices warrant scrutiny. Combined with his personal relationship with Willis, they raise significant questions, including whether any of his outsized earnings have benefited Willis.
The current evidence in the public domain does not establish that either Willis or Wade committed any crimes or violated their ethical obligations as licensed attorneys. And both lawyers vehemently deny any improprieties. As Wade said in his affidavit, “The District Attorney received no funds or personal financial gain from my position as Special Prosecutor.” But if Wade did inflate his bills or if Willis did benefit from any of Wade’s earnings, those activities would be unethical if not unlawful. And they could lead to disqualification by the judge.
“The state has admitted a relationship existed,” presiding Judge Scott McAfee said at a hearing on Monday. “So what remains to be proven is the existence and extent of any financial benefit, again if there even was one. Because I think it’s possible that the facts alleged by the defendant could result in disqualification.” He said the evidentiary hearing on Thursday would “establish the record on those core allegations.”
Moreover, even the prospect of this impropriety could allow Trump to assert a defense (in court and in the public square) that the cases against him are part of a pattern of prosecution that amounts to a witch hunt undertaken by a corrupt system.
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Finally, and most importantly, Willis and Wade should recuse themselves because these controversies and even the appearance of corruption simply cannot be allowed to reach the jury and infect the trial. This could happen if the judge allows Trump’s attorneys to raise them in court. Or it could happen if the related media coverage reaches jurors outside the courthouse. If even one juror thinks Willis was motivated to prosecute Trump to enrich a romantic partner instead of to do justice, it could switch the verdict from guilty to not guilty. Jury trials often turn on far less.
Fortunately, however, this can still be avoided. If Willis and Wade recuse themselves promptly, this controversy is unlikely to taint the trial. Their continued presence on the case is what drives these concerns. And while the defendants raised the controversy with the court, it’s actually the prosecution’s effort that’s harmed by it.
If Willis and Wade step aside, other competent lawyers can make the case that Trump violated the law. A full and robust presentation of evidence could still be presented at trial. And because the Fulton County prosecutorial team is large, including two other special prosecutors already on the case, the recusals wouldn’t likely cause the trial to be delayed until after the election.
This saga is thus a huge problem with a simple and effective solution.
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