Willis Wades into a Quagmire

With Friday’s admission by Fulton County District Attorney Fani Willis that she and her appointed Special Prosecutor Nathan Wade were indeed engaged in a “personal relationship,” the question will undoubtedly turn to whether or not Wade’s participation in the case as a Special Prosecutor was improper enough to disqualify Willis from prosecuting the case against Donald Trump and the other indicted co-conspirators.

According to the Atlanta Journal Constitution, “The admission was included as part of Willis’ highly-anticipated written response to allegations of impropriety that have rocked the Trump case for the last month.” The AJC continued, “In the 176-page document, Willis said the accusations made against her and Wade were designed mainly to garner media attention — and didn’t carry much legal weight.”

Anthony Michael Kreis, a Georgia State University law professor, told the Associate Press this was “as strong a response as she could have made,” adding, “I’m just left with the question of why did they not respond sooner. As a legal matter, I think it’s done. As a political matter, it still seems a little messy.”

Kreis may be correct on the response, if proven, would put most of the legal matters to rest. As Willis points out in her response, there is not a bright-line rule against attorneys having personal relationships if they are not representing adverse clients (and according to Jones v. Jones, 258 Ga. 353, 354–55 (1988) “Absent a showing that special circumstances exist which prevent the adequate representation of the client, disqualification based solely on marital status is not justified.”). As noted in the AJC, there are personal relationships among the defense team as well, “the response notes that two sets of defense lawyers in the case have personal relationships: Amanda Clark Palmer, who represents Ray Smith, and Scott Grubman, who had represented Kenneth Chesebro; and Frank and Laura Hogue, the husband-and-wife legal team that represented Jenna Ellis.”

The more salacious allegations against Willis and Wade are that Willis financially benefited from Wade’s hours billed to the DA’s office, thereby benefiting personally through the relationship with funds paid to Wade from Fulton County taxpayers. There are two problems with this attack:

1. Money is a fungible commodity. In other words, any funds paid to Nathan Wade’s law firm (and he does have a law partner) are comingled with other income and other funds Wade had, so who is to say the dollar he spent to take Fani Willis to Napa or Miami with him was the same dollar that came from the taxpayers of Fulton County? In fact, if Jocelyn Wade’s allegations are true that Nathan was draining their joint bank account, it may have been Jocelyn Wade who paid for her husband to take Fani Willis to Miami!
2. If there was not a legal issue with hiring Wade in the first place despite the personal relationship, then it would stand to reason that his income, from whatever source, could and would be used in the furtherance of that relationship. What’s more, the $250 hourly rate Wade has accepted is relatively low for an attorney, especially Wade who has been practicing law for 25 years. The reason an attorney would take that hourly rate is simply because it’s steady pay for the duration of the case. As long as there no allegations of or proof that Wade billed for hours he did not work, than the amount is not only standard for such contracted cases, but low in comparison to what would normally be charged as an hourly rate for an attorney.

It would be a different issue if Nathan Wade secretly reimbursed Willis the funds he was being paid to her own, personal bank account, but that’s not what is even being alleged. While there are potential ethical pitfalls for Willis per the Fulton County Ethics Commission, which addresses and investigates ethics breaches by any elected official in Fulton County, the issue seems to be one that is mostly procedural, and not substantive. A finding of an ethics violation by a Fulton County official may mean penalties which include up to a $1000 fine, a public reprimand, and a recommendation to the board of commissioners for additional disciplinary action for individuals that commit an “intentional violation” of the code of ethics, such as “the furnishing of false or misleading information to the board of ethics” (Sec. 2-82.). 

While the Commission may have the power to levy a fine and issue a reprimand, the Commission does not have the power to remove an elected official. The question for the Commission, and for Judge Scott McAfee to decide at the hearing scheduled for February 15 (I don’t know a better way for a happy couple to celebrate Valentine’s Day than getting their court briefs in order) is whether or not the personal relationship coupled with the possible failure to follow procedure in not just the disclosures, but the very appointment of Nathan Wade, should disqualify Willis (and/or Wade) from the case.

However, the leading case on disqualification of a prosecuting attorney doesn’t seem to fit neatly in the situation that Willis and Wade are in. In McLaughlin v. Payne, 295 Ga. 609 (2014), the Georgia Supreme Court ruled that the entire District Attorney’s Office should have been disqualified in the prosecution of William Payne because of the DA’s personal interest in the case. Payne was on trial for multiple counts of child molestation when the Douglas Judicial Circuit District Attorney David McDade, appeared as a witness for the State. McDade recused himself from the prosecution and did not participate in the case at all. His testimony centered around what his daughter, who was friends with one of Payne’s alleged victims, had confided in him about Payne.

The Court noted that it wasn’t always the case that the entire DA’s staff had to be disqualified pointing to their ruling in Brown v. State, 261 Ga. 66, 72(9), 401 S.E.2d 492 (1991) stating, “The trial court did not err by denying Brown’s motion to recuse the entire office of the district attorney simply because the district attorney himself, who was a witness in the case, was disqualified.”

However, in the case of McDade, as the issue of his testimony concerned his own daughter, the Court saw the issue as more “personal” requiring the entire DA’s Office being disqualified from prosecuting the case for their boss. The Court ruled, “Nonetheless, the habeas court found that McDade had a personal interest in the case that disqualified him from participating in the prosecution of the case at all, not just from serving as trial counsel. And, this finding does raise an issue implicating not only McDade’s role in the prosecution, but that of his entire office…The elected  district attorney appoints the assistant district attorneys, O.C.G.A. § 15–18–14, the assistant district attorneys serve only at his pleasure, and their authority is derived from him…When the elected district attorney is wholly disqualified from a case, the assistant district attorneys—whose only power to prosecute a case is derived from the constitutional authority of the district attorney who appointed them—have no authority to proceed.”

But the issue with Willis’s and Wade’s personal relationship doesn’t involve testimony against President Trump or any of the other defendants, but simply if Fani Willis had a personal conflict of interest when she brought on Nathan Wade as a Special Prosecutor. As that question does not go to any issue of prosecutorial misconduct, just personal/ethical misconduct, there is likely no legal reason for the case to be removed from the Fulton County District Attorney. What’s more, even if Willis did not follow policy and procedure on Wade’s appointment by getting the requisite signoff from the Fulton County Board of Commissioners, its hard to see that the Democratic controlled board would not give some sort of a retroactive approval after they give Willis a slap on the wrist. Despite allegations that Nathan Wade is not qualified to try a RICO case, it’s hard to claim with a straight face that Nathan Wade, who has been a practicing attorney for over 25 years, and has defended dozens of felony cases in Cobb County alone (thanks to a quick search of the Cobb County Superior Court website), is not qualified. In fact, as our law school professors point out, we are supposed to be qualified to try any case as soon as we pass the bar. What’s more, shouldn’t Trump and the other defendants want MORE prosecutors who are in over their heads rather than a prosecutor who is much more a subject matter expert on RICO?

That being said, as 50% of lawyers are wrong in any given courtroom on any given day, so may be my analysis above. So what would happen to the case, and, more importantly, to the former defendants who have already entered guilty pleas should the case be removed or even thrown out?

If Willis is disqualified, the Fulton County District Attorney’s Office may be able to continue the prosecution given the doctrine from the Brown decision mentioned above. However, if Judge McAfee decides that the entire office must be disqualified, then state law requires the Prosecuting Attorneys’ Council of Georgia to assign a new prosecutor, so the case does not go away, it just gets delayed.

On the extreme, assuming the entire case is dismissed because just one attorney’s, Nathan Wade, illegal appointment has so tainted the case from the inception that it all has to be dismissed, can the defendants who have entered pleas pull them back? The answer is a resounding maybe.

The Uniform Superior Court Rules govern the withdrawal of guilty pleas after sentencing. Rule 33.12 states:

(A) After sentence is pronounced, the judge should allow the defendant to withdraw a plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

(B) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty or nolo contendere as a matter of right once sentence has been pronounced by the judge.

Generally, when we are talking about a “manifest injustice,” we aren’t talking about soap opera issues of who is dating who. We are talking about clear prosecutorial misconduct, like withholding or tampering with evidence, none of which so far has been alleged. In addition to the motion needing to correct a manifest injustice, the motion must be timely filed, which means within the term of the court. Court terms are defined in O.C.G.A. § 15-6-3. The guilty pleas were entered in the previous court term, so the motions would now not be timely.

While the accusations against Willis and Wade have certainly provided an extra ring of entertainment that is the circus of the overall prosecution of Donald Trump, they likely don’t constitute the level of misconduct necessary to bring down the big top.

Was it a stupid and careless mistake? Absolutely.

Will Nathan Wade’s ex-wife end up getting almost everything she asks for in the divorce with these allegations brought to light? Hopefully.

Does it exonerate Trump and his co-defendants? Absolutely not.

Nathan Wade should step aside and use as an excuse the damage this has caused to his divorce case and let Willis and her staff continue on without him.

There is an old saying among lawyers: If the law is against you, argue the facts. If the facts are against you, argue the law. If the law and facts are against you, call the other side names.

When we really look at the the allegations levied by defendant Michael Roman and his attorney, beyond the shock value…beyond the salaciousness…beyond our personal feelings about the prosecutors, the defendants, and the overall case, in the end, it seems to only be calling the other side names.

I’m willing to bet that Judge McAfee will also look past that salaciousness and simply apply the law, and deny Michael Roman’s motion after all of the parties have their February 15 day in court. After that, Fani and Nathan can wade back out of this quagmire and go on with both the case and their relationship.