Georgia Court of Appeals Disqualifies Willis from Trump Prosecution
Yesterday, the Georgia Court off Appeals (COA) in a 2-1 ruling disqualified Fulton County District Attorney Fani Willis from prosecuting the Trump Election Interference case. The COA’s decision overrules a March 15, 2024 decision by Fulton County Superior Court Judge Scott McAfee, which gave Willis a choice between losing the case or losing Special Assistant District Attorney (SADA) Nathan Wade. The Defendants alleged that a romantic relationship between Willis and the then still married Nathan Wade constituted a conflict of interest enough that it cast an appearance of impropriety over the entire prosecution requiring Willis to be disqualified and the indictments against Trump and his alleged co-conspirators be tossed out.
The balance McAfee and the three judge panel at the COA had to reach centers around a question as to whether Willis’s general misconduct as enough of a poison pill to taint the entire case. McAfee and COA Judge Benjamin Land said, “no”. COA Judges Todd Markle and Trenton Brown both believe it does.
Willis, through a spokesman, plans to appeal the COA’s decision to the Georgia Supreme Court.
The issue boils down to a conflict of interest sufficient enough to cast an appearance of impropriety over the entire case. The Superior Court correctly concluded there was a conflict of interest in Willis (and her office) prosecuting an elected official, Burt Jones, who Willis took an active part in defeating at the ballot box when she headlined and hosted a fundraiser for Jones’s Democratic opponent, but being in a romantic relationship with one of your hired SADAs, especially one like Nathan Wade, who was for years an active, dues paid member of the Cobb County Republican Party, attending party events and even conventions – Wade supported my opponent for County Party Chair at the 2015 Convention, but we worked closely together to support Republican Sheriff Neil Warren when his Democratic opponent tried to have Warren removed from the 2020 ballot – is not a conflict that goes to the heart of the issues in the case and certainly doesn’t show a personal bias against any of the defendants.
GOP partisans will find disqualifying conflicts of interest anywhere they can, whether those conflicts are actual or perceived. The main conflict articulated is in the fact that an elected Democratic DA is prosecuting Republicans, including the former and future Republican President of the United States. The problem with the partisan conflict is it exists throughout the state. Except in Athens-Clarke County, where an Independent defeated the incumbent Democratic District Attorney in the November election, our DAs are partisan. If you tie Willis’s hands because she is a Democrat, you tie the hands of every Republican DA (and most of our DAs in Georgia are Republicans) from prosecuting Democratic elected officials and party leaders. If the courts considered partisanship to be a conflict of interest enough to disqualify a prosecutor, then we would have long seen the position, like judges, be elected on the non-partisan ballot.
Ironically, the Atlanta Journal-Constitution decided to cast aspersions on the COA judges making it seem like they had a partisan conflict of interest noting, “All three COA judges were appointed by Republican governors,” without also noting that all three judges were also then elected in non-partisan elections by the voters. Any judge appointed in the state of Georgia since 2003 has been appointed by a Republican governor. Unlike their federal counterparts, all judges in Georgia also have to face the voters for their re-election. More ironic is that the AJC seems to forget McAfee was appointed to the bench by a Republican Governor, Brian Kemp, after having served as State Inspector General under Kemp as well after having having been appointed Assistant United States Attorney for the United States District Court for the Northern District of Georgia by one of the co-defendants, Donald J. Trump, in 2019.
In its majority opinion, the COA did not revisit the issue of conflict or the appearance of impropriety, only the remedy – remove Wade or remove the entire DA’s office. McAfee did, indeed, find there was the appearance of impropriety and the COA did not review the trial court’s decision on that issue, accepting the factual basis of the holding. Writing for the majority, Judge Brown states, “Accordingly, whether the evidence presented to the trial court adequately supported, under the appropriate standard of review on appeal, its finding of the existence of an appearance of impropriety is not before this Court. Instead, we must determine whether the remedy fashioned by the trial court for this undisputed finding of a ‘significant’ appearance of impropriety was improper as contended by the appellants. For the reasons explained below, we conclude that it was and therefore reverse the trial court’s denial of the appellants’ motion to disqualify” <emphasis added> (Majority opinion, pages 2-3).
The majority in the COA revisited the timeline for the motion as it reviewed the facts of the case:
“On August 14, 2023, DA Willis secured the RICO indictment against the appellants (and ten others). On January 8, 2024, Roman filed a motion to dismiss the indictment and disqualify DA Willis, her office, and SADA Wade from further prosecuting this case on alleged grounds of conflict and an appearance of impropriety. Roman alleged a personal relationship between DA Willis and SADA Wade, along with an alleged personal financial interest in the case. After DA Willis spoke publicly in a church service on Sunday, January 14, 2024, the other appellants also filed motions seeking dismissal and disqualification on the same grounds, as well as the additional ground of forensic misconduct in connection with the church speech and various other extrajudicial statements” (Majority Opinion, page 5).
Prior court decisions have consistently held that disqualifying an attorney, especially a prosecutor, to be an extraordinary remedy. The COA addresses Willis’s disqualification stating, “After carefully considering the trial court’s findings in its order, we conclude that it erred by failing to disqualify DA Willis and her office. The remedy crafted by the trial court to prevent an ongoing appearance of impropriety did nothing to address the appearance of impropriety that existed at times when DA Willis was exercising her broad pretrial discretion about who to prosecute and what charges to bring. While we recognize that an appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings” <emphasis added> (Majority Opinion, page 17).
Despite the fact that the issue concerning the appearance of impropriety existed during the pretrial stage when Willis and Wade were presenting evidence to the Grand Jury, the COA split the baby by not throwing out the Grand Jury’s indictments.
So I’m confused…and I think COA Judge Benjamin Land is as well based on his dissent…”The majority does not dispute these findings. Rather, it holds, with the citation of no supporting authority and apparently for the first time in the history of our state, that the mere existence of an appearance of impropriety, in and of itself, is sufficient to reverse the trial court’s refusal to disqualify the district attorney and her entire office. As shown below, the law does not support this outcome; rather, it compels precisely the opposite” (page 3 of the Dissent).
The majority bases the disqualification on mostly public confidence in the District Attorney’s Office, rather than a body of prior caselaw on the subject. The majority states on page 17 of their opinion, “While we recognize that an appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings” <emphasis added>.
But just who is the public who needs their confidence restored? The public who Fani Willis answers to are the voters in Fulton County. Despite having an exceptional alternative in Republican District Attorney candidate Courtney Kramer (for full disclosure, I donated to Kramer’s campaign), Fulton County voters returned Willis to office for another term with nearly 70% of the vote. Politically speaking, that’s a high level of public confidence in the job Willis and her office has been doing…even if that confidence is misplaced.
Judge Land continues his analysis:
“Where, as here, a prosecutor has no actual conflict of interest and the trial court, based on the evidence presented to it, rejects the allegations of actual impropriety, we have no authority to reverse the trial court’s denial of a motion to disqualify. None. Even where there is an appearance of impropriety. Our binding precedent and the doctrine of stare decisis require our restraint and do not permit us to impose a different remedy than the one chosen by the trial court simply because we might see the matter differently and might have chosen to impose another remedy had we been the trial judge. For at least the last 43 years, our appellate courts have held that an appearance of impropriety, without an actual conflict of interest or actual impropriety, provides no basis for the reversal of a trial court’s denial of a motion to disqualify.” (Id.)
The issue, in a nutshell, comes down to general versus specific misconduct by DA Willis.
While there was an obvious and specific conflict of interest concerning Burt Jones that would have tainted any prosecution of him by Willis, this was not the case with the others. Willis’s misconduct with Wade was outside the case…sometimes as far outside the case as a vacation to Miami, FL. If Nathan Wade, as a Republican, had been indicted in the case and Willis had dismissed the charges based on their relationship, that would be a cause for dismissal of the whole case. But, as Judge Land noted, none of the issues surrounding Willis and Wade’s relationship had to do with the merits or administration of the prosecution.
“Here, the trial court expressly found that appellants failed to show that the district attorney had an actual conflict of interest, failed to show that she received any material financial benefit as a result of her relationship with Nathan Wade, failed to show that she had a personal stake in the conviction of any defendant, failed to show that her relationship with Wade involved any actual impropriety on her part, and failed to show that their relationship, including their financial arrangements, had any actual impact on the case. Because there was some evidence presented to the trial court that supported these findings, we are bound to accept them. Neuman, 311 Ga. at 88 (3). The majority does not dispute these findings. Rather, it holds, with the citation of no supporting authority and apparently for the first time in the history of our state, that the mere existence of an appearance of impropriety, in and of itself, is sufficient to reverse the trial court’s refusal to disqualify the district attorney and her entire office. As shown below, the law does not support this outcome; rather, it compels precisely the opposite” <emphasis added> (Dissent, pages 2-3).
It will be interesting to see on which side the Georgia Supreme Court takes, but Willis’s lapse in professional judgment concerning her ill advised relationship with Nathan Wade seems to be more of a political question, one answered by voters on November 5, than a disqualifier for her participation in the case.
As for now, we will have to wait for one more step to see if Willis will continue to head up the prosecution of her case, or if its future will be decided by another DA elsewhere in the state. With the way Willis and her office have been handling it thus far…if I were a defendant, I don’t know if I would want to risk a better DA taking it over. Maybe new Cobb County District Attorney Sonya Allen, who was endorsed by Willis in the Democratic Primary and beat incumbent Democratic District Attorney Flynn Broady (who also passed on the Burt Jones prosecution) 55-45% would take up the prosecution, but she may be too busy hiring new prosecutors after cleaning out the Cobb DA’s office of its most experienced prosecutors. Like Nathan Wade, Sonya Allen was a longtime member of the Cobb County Republican Party and served as Republican Sheriff Neil Warren’s chief deputy before his defeat for re-election in 2020. Allen did not face Republican opposition in the November election.
I think I’d rather continue with the one who has undermined her own case every step of the way.
