Last week, Judge Scott McAfee issued his opinion on the potential disqualification of Fulton County District Attorney Fani Willis and her subordinate-slash-romantic partner Nathan Wade from Fulton County’s prosecution of Donald Trump and some 18 other Republicans relating to the 2020 election. McAfee found that there was no actual conflict of interest but did find that there was an appearance of impropriety, and held that Wade, but not Willis, had to resign from the prosecution.
The opinion was wrong on the facts and the law. But Trump and his co-defendants have strong grounds for appeal, and Fani Willis isn’t out of the woods yet. Moreover, Georgia Gov. Brian Kemp and Attorney General Chris Carr need to do their job, get over whatever animus they have toward Trump, and indict Willis and Wade on perjury charges.
Factual Errors
There were two core factual issues Judge McAfee was charged with resolving. The first was whether Willis and Wade’s romantic relationship began before November 2021, when Willis hired Wade as a special prosecutor. The second was whether Willis had a conflict of interest resulting from Wade paying for vacations for the two of them while he was contracting with Willis’ office.
The first question should have been straightforwardly resolved against Willis and Wade. Willis’ former best friend and landlord, Robin Yeartie, reluctantly testified that the relationship did in fact begin back in 2019.
Judge McAfee dismissed Yeartie’s testimony as “lack[ing] context and detail.” Perhaps Judge McAfee didn’t bother to reread the transcript of the proceedings that happened in his own courtroom. Yeartie didn’t merely testify to the fact that Willis and Wade’s relationship began in 2019; she testified that she had multiple conversations with Willis about the relationship prior to 2022, and that she observed Willis and Wade hugging and kissing prior to 2022. It’s hard to understand what further detail McAfee expected Yeartie to provide.
Judge McAfee also completely brushed aside cell phone data showing that Wade often spent the night at Willis’ residence prior to November 2021, and that they exchanged thousands of phone calls and more than 10,000 text messages prior to when they claim their relationship began. It’s clear he had no desire to affirmatively find that Willis perjured herself.
Legal Errors
Judge McAfee’s factual findings, though bizarre and untethered to the evidence, are unlikely to be disturbed on appeal, as appellate courts must give a lot of deference to the factfinder. But there were also several suspect legal holdings in Judge McAfee’s opinion that are ripe for appeal.
Judge McAfee said that “the evidence did not establish the District Attorney’s receipt of a material financial benefit as a result of her decision to hire and engage in a romantic relationship with Wade” and that “the Defendants [did] not present[] sufficient evidence indicating that the expenses were not ‘roughly divided evenly.”
As Professor Alan Dershowitz pointed out, McAfee misapplied the law on this question. Defendants presented straightforward evidence that Willis benefited from hiring Wade: Wade’s credit card receipts showing that he paid for their joint vacations. Given the existence of these receipts, the burden should have been on Willis and Wade to prove that these expenses were reimbursed.
They could not do this, of course. Willis and Wade testified that the expenses were reimbursed in cash and provided no ATM receipts or bank deposit receipts to corroborate their clearly improvised story.
McAfee held that the burden was on the defense to prove that the expenses were not reimbursed. That’s improper as a matter of law, and as Dershowitz explained, it’s also grounds for reversal on appeal.
Further, Judge McAfee found that “neither side was able to conclusively establish by a preponderance of the evidence when the [Willis/Wade] relationship evolved into a romantic one.” This sentence is legally incoherent. If a prosecutor — or the defense — can “conclusively” prove a fact, that is equivalent to saying that they have proved that fact beyond a reasonable doubt. The point of a “preponderance of the evidence” standard is that the fact does not have to be “conclusively” proved by the evidence; rather, there just needs to be more evidence supporting one side than the other.
If Judge McAfee had applied the preponderance of the evidence standard properly, there is no way he could have found it for Willis. On the side of finding that the relationship began in 2019, we have the disinterested testimony of Robin Yeartie, the text messages of Terrence Bradley, and the cell phone tower evidence showing that Wade was regularly in the vicinity of Willis’ residence in the early morning hours. On the other side of the ledger, he has the self-serving testimony of Willis and Wade denying the existence of the relationship. This shouldn’t have been a close question, but by subtly shifting the burden of proof and requiring the defendants to “conclusively” prove the existence of the relationship, McAfee avoided disqualifying Willis.
McAfee also held that an appearance of impropriety can warrant disqualification of individual prosecutors but not the whole prosecutor’s office, and further held that removing Wade would “cure” the appearance of impropriety.
This last legal holding is unlikely to survive appellate scrutiny. The appearance of impropriety implicates both Willis and Wade. As Jonathan Turley put it, it’s as though the police discovered two thieves in a bank vault and arrested only one. There are reasonable questions about whether Willis testified truthfully and about whether she financially gained from the prosecution. Those questions don’t just go away because Wade withdrew.
Willis Isn’t Out of the Woods
Even though Judge McAfee bent over backward to avoid disqualifying Willis and her office, the opinion created a ton of problems for Willis going forward. Judge McAfee described how an “odor of mendacity” permeates the case and acknowledged that “reasonable questions about whether [Willis and Wade] testified untruthfully … further underpin the finding of an appearance of impropriety.”
These factual findings provide fertile ground for a successful appeal by the defendants. Ashleigh Merchant, Steve Sadow, and the rest of the lawyers working for the defense are certainly going to ask Judge McAfee for a certificate of immediate appeal, so they can go straight to the court of appeals without waiting for the trial to conclude. That said, no one can force Judge McAfee to certify the issue for appeal, or the court of appeals to subsequently take the case. One hopes that both will exercise their discretion to remedy this injustice.
Moreover, Judge McAfee also found that Willis’ speech to a local Atlanta church, where she accused defendant Mike Roman and his lawyer Ashleigh Merchant of “playing the race card,” was, in McAfee’s words, “legally improper.” He’s right about that.
Georgia Rule of Professional Conduct 3.8(g) mandates that prosecutors “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” McAfee declined to dismiss the indictment because of these comments, but Willis is still going to have issues with the Georgia Bar over what is a very straightforward violation of ethics rules.
Remember: Fani Willis is trying to put Donald Trump, Rudy Giuliani, and others in jail for allegedly attempting to deceive Georgia courts three years ago. She can’t credibly continue to prosecute this case when there are “reasonable questions” about whether she attempted to deceive a Georgia court three weeks ago.
The “reasonable questions” about DA Willis’ truthfulness are already the subject of complaints to the Georgia Bar about Willis and Wade’s conduct. They should also serve as the predicate for an investigation by Georgia Attorney General Chris Carr into potential perjury charges against Willis and Wade. Carr, and his boss Brian Kemp, need to get off the sidelines. A partisan Democrat prosecutor has just lied under oath so that she can continue prosecuting Republicans for objecting to election results.
That cannot stand.
