About three weeks ago, Clark Cunningham, a law professor at Georgia State U, wrote a guest essay in the New York Times: Why Fani Willis Should Step Aside in the Trump Case in Georgia. He argued thusly:
It helps to know Georgia law to understand why the stakes of this complication are so high and could be so damaging to the case — even if the motion to remove Ms. Willis, Mr. Wade and the district attorney’s office is ultimately decided in their favor.
If, in mid-February, Judge McAfee grants Mr. Roman’s motion right away and applies the motion to the other defendants, it could bring the entire case to a halt, because under Georgia law, if a district attorney is disqualified, so is the entire staff of the district attorney’s office. Her stepping aside would forestall her disqualification.
When Cunningham wrote this, it did not appear that Roman had much of a case. Two people on the same side of the case getting romantically involved does not in any way prejudice the case (unlike two people on opposite sides, or representing two different defendants in the same case). It is, or should be, irrelevant.
Today it may have become relevant. Georgia judge rules evidence exists to possibly disqualify DA Fani Willis in Trump election case:
A Georgia judge ruled Monday that he will hold at least two days of potentially explosive televised hearings later this week on whether to disqualify Fulton County District Attorney Fani Willis from the election fraud case against former President Donald Trump because of her romantic affair with the special prosecutor she hired to oversee it.
The judge did add a word of caution:
But Fulton County Superior Court Judge Scott McAfee also cautioned lawyers seeking to have Willis and Nathan Wade dismissed − and the case thrown out entirely − that he will not tolerate attempts to smear their reputations through unproven allegations.
Even so:
Given that both Willis and Wade have acknowledged their relationship, McAfee said, what "remains to be proven" is whether Willis derived any financial benefit from it, as alleged last month by Michael Roman, a former Trump campaign official also charged in the alleged effort to illegally overturn Trump's 2020 Georgia loss to Democrat Joe Biden.
"So because I think it's possible that the facts alleged by the defendant could result in disqualification, I think an evidentiary hearing must occur to establish the record on those core allegations," McAfee said.
Again, according to Professor Cunningham, under Georgia law, if the DA is disqualified from a case, her entire office is also disqualified, and they have to get a new DA and staff, and start all over. Jen Psaki — or possibly Rachel Maddow; I was watching both while cooking dinner and may have lost track) interviewed Prof. Cunningham tonight, which is how I learned about this.)
Now, we don’t know what evidence Roman’s lawyer might bring. Roman says he has evidence contradicting the sworn affidavits by Willis and Wade that their relationship only started after she had hired him for the case. That is risky for both sides: it could lead to a perjury charge if the evidence stands up, or to disciplinary, possible disbarment, and maybe even criminal charges for Roman’s lawyer if she was just blowing smoke.
But the judge is now focused on a different part: Regardless of when the relationship started, did Willis derive any financial benefit from it?
“So just to emphasize, I think the issues at point here are whether a relationship existed, whether that relationship was romantic or non romantic in nature, when it formed and whether it continues,” McAfee said. “And that's only relevant because it's in combination with the question of the existence and extent of any personal benefit conveyed as a result of their relationship.”
That, it seems to my non-lawyer self, is a much murkier question: If Wade paid for some of their trips together, does that count as financial benefit? Since money is fungible, can those trips be connected to his compensation for working for Fulton County?(Wade is a part of a successful law firm with other sources of income.) Did she reimburse him, and did she keep the documents? Can they be connected?
What I’m afraid of is that Judge McAfee may decide that the evidence is sufficiently suggestive, even if not totally convincing, that he may disqualify Willis out of an excess of caution. It is not, unfortunately, the first time she has exercised poor judgment. I have the impression from the news reports that his focusing on the financial aspect caught people by surprise.
To summarize Cunningham’s argument, both in the NYT essay and in the interview: If Willis takes a leave of absence now, the case will still move forward on schedule. If the judge disqualifies her, the case goes back to step zero while some authority looks for a whole new office to take it over. Which, based on past performance, could take a while. A long while.
Up to now, I’ve supported Willis on the quite legitimate grounds that her affairs are irrelevant to the case. But now McAfee has suggested that they might be. And that creates to great a risk for my taste.
(In the poll below, I’ve added an option for Willis to announce to the court that she’s taking leave after seeing the evidence — assuming it’s bad — and before the court can rule. But I don’t know if she will have that option in Georgia’s procedures.)