As a question of atmospherics, though, the situation is a disaster — an unexpected gift to Trump that he will exploit not only to discredit the Georgia prosecution but also to augment his broader claims of being unfairly persecuted. It would be advisable for special prosecutor Nathan Wade to step aside, as a group of legal ethics experts has suggested, but the harm has already been done and could get worse: On Monday, a judge ordered records unsealed in Wade’s divorce case.
Assuming that the allegations are accurate, Willis displayed monumentally poor judgment by bringing in Wade, a former municipal court judge and lawyer in private practice with scant expertise in complex criminal cases; he has been paid some $650,000, at an hourly rate of $250. (That might sound like a lot, but it’s reasonable and consistent with compensation for other outside attorneys.) Adding fuel to the fire are records, filed in Wade’s divorce proceedings, indicating he paid for Willis’s travel to San Francisco and Aruba.
What in the world was Willis thinking? She did not help herself after the allegations surfaced by insinuating that the criticism was racially motivated because there were no complaints about her hiring two other special counsels, who are White. “They only attacked one,” Willis said. Um, she’s only accused of having a romantic relationship with one.
And this is not complicated. In government or out, you don’t hire your boyfriend. You know who knows this? Fani Willis. “I certainly will not be choosing people to date that work under me,” she said in a 2020 campaign appearance helpfully recirculated by the Georgia GOP chairman.
I have not been a fan of the Georgia case, with its charge of a sprawling, multi-defendant racketeering conspiracy. But Willis and her team have racked up some notable successes, securing guilty pleas — albeit no jail time — from Trump lawyers Sidney Powell, Kenneth Chesebro and Jenna Ellis, who agreed to cooperate with prosecutors.
Now comes a motion filed by defendant Michael Roman, a former Trump campaign official, seeking to have the entire indictment dismissed as “invalid and unconstitutional” and Willis’s office disqualified from further proceedings.
Roman’s lawyer, Ashleigh Merchant, asserted that Willis and Wade have an “impermissible and irreparable conflict of interest” in the prosecution. “Willis has benefitted substantially and directly, and continues to benefit, from this litigation because Wade is being paid hundreds of thousands of dollars to prosecute this case on her behalf,” Merchant argued. “In turn, Wade is taking Willis on, and paying for vacations across the world with money he is being paid by the Fulton County taxpayers and authorized solely by Willis.”
Not only does this violate Georgia’s legal ethics rules, she suggested, but it also could constitute the federal crime of “honest services fraud,” since Willis benefited from the hiring without disclosing it.
This is overblown and unlikely to succeed. As lawyers Norman Eisen, Joyce Vance and Richard Painter argue on the Just Security website, there is a critical distinction between whether Willis’s conduct violated any ethical rules and whether it warrants dismissal of the criminal charges.
“Questions about gifts and related matters go to Willis’s and Wade’s obligations to the Fulton County District Attorney’s office, and have no connection to assuring the defendants a fair trial,” they write. “These allegations are as irrelevant to the trial as allegations in other situations that prosecutors took office supplies for personal use, drove county vehicles for personal errands, or plagiarized portions of their student law review notes.”
A conflict of interest would be present in a situation where “conflicting loyalties” could harm the defendant. “We might question Willis’s judgment in hiring Wade and the pair’s other alleged conduct,” Eisen, Vance and Painter write, “but under Georgia law that relationship and their alleged behavior do not impact her or his ability to continue on the case.”
By contrast, at an earlier stage of the case, Willis was appropriately disqualified from pursuing charges against Burt Jones, a 2020 Trump elector and then the GOP candidate for Georgia lieutenant governor, after hosting a fundraiser for his Democratic opponent.
“This choice — which the District Attorney was within her rights as an elected official to make — has consequences,” wrote Superior Court Judge Robert McBurney. “She has bestowed her office’s imprimatur upon Senator Jones’s opponent. And since then, she has publicly (in her pleadings) labeled Senator Jones a ‘target’ of the grand jury’s investigation. This scenario creates a plain — and actual and untenable — conflict.” There’s no analogous conflict here.
But there is a problem. The arrangement stinks, and it plays right into Trump’s hands. Trump has already called Willis and Wade “the lovebirds” — shades of his attacks on FBI officials Peter Strzok and Lisa Page — and accused them of going after him “to ENRICH themselves and to live the Lifestyle of the Rich and Famous.”
We know Trump needs no evidence to launch baseless assaults; see his description of the law clerk for Justice Arthur Engoron in the New York civil fraud trial as “Schumer’s girlfriend.”
Now, Willis has offered him live ammunition. It might not damn her case in court, but the damage in the court of public opinion is immense.
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