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District Attorney Fani Willis will be able to continue in her RICO prosecution of former President Donald Trump and his associates, the judge in that case ruled on Friday, when he rejected the argument that she be disqualified from the case over allegations of a conflict of interest stemming from a romantic relationship with a co-prosecutor. The judge, Scott McAfee of Fulton County Superior Court, rejected the motion that would likely have torpedoed one of the most powerful criminal cases against the former president. Instead, he chastised Willis for poor judgment but allowed her to stay on the case so long as her former romantic partner, special prosecutor Nathan Wade, withdraws from the proceeding.

This was the exact right outcome. While Fani Willis’ performance on the stand during a multiday hearing over the conflict question—and her decision to keep the relationship with Wade private while paying him a salary—was indecorous and crossed the line of prosecutorial propriety, the defense was unable to prove a conflict of interest required by Georgia law for full disqualification. At the same time, as McAfee wrote, “The appearance of impropriety remains,” and the best possible way to resolve that is for Wade to leave the case.

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The entire episode has demonstrated that this proceeding against Trump may be led by the wrong prosecutor, a fact that was not at all clear when the case began with such promise last August. Willis had a string of early major wins, but her missteps with Wade and the resulting harm to the case’s perception in the court of public opinion might harm one of the most important cases in the country’s history. Fortunately, the case has the right judge.

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First, and briefly, on Willis. The district attorney brought a smart case and to this point prosecuted it well. She won impressive plea agreements from top Trump co-conspirators, such as Sidney Powell and Kenneth Chesebro. All of that, however, was nearly undone—and could still come apart on the inevitable appeal of the disqualification question—by a horrible lapse in judgment.

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Having a romantic relationship with another prosecutor on your team is not in and of itself an ethical lapse. But keeping it quiet from anyone and everyone while continuing to pay that employee in a case with the highest possible stakes for our democracy against a notoriously combative defendant is a disastrous lapse. What’s more, Willis’ response to the revelations possibly made it worse, using a church speech to claim victimhood and say that the charges were racially motivated when they were in fact standard, and then using court testimony to cast aspersions on opposing counsel and act as though she thought she were the judge in the case. It’s still unclear whether she and Wade fully and truthfully testified in those appearances, with an outstanding question remaining over when, exactly, their relationship started (they both claimed, under oath, that it started after the prosecution began).

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In his opinion absolving Willis of the worst accusations against her—a far-fetched allegation that she is prosecuting Trump for financial gain via her relationship with Wade, which would have led to her immediate dismissal if proven—McAfee still appropriately knocked Willis for her astounding prosecutorial failures. In demanding Wade’s withdrawal from the case, McAfee noted that Wade’s and Willis’ testimony left “an odor of mendacity” that resulted in an “appearance of impropriety.” Further, he chastised Willis for the church speech casting herself as the victim of a racially motivated defense team as “legally improper.”

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If Judge McAfee’s sound decision is not overturned on appeal, this means Willis can still redeem her prosecution of Trump if and when it’s ever brought to trial.

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McAfee, having proved himself over and over again to be a supremely capable jurist, needs no such redemption. In fact, he may be this case’s saving grace.

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This wasn’t at all clear at the start of the case. By all initial appearances, Judge McAfee seemed to share a potentially alarming number of biographical details with another judge handling a Trump prosecution, Aileen Cannon. Both worked in U.S. attorney offices in Republican administrations. Both were appointed by high-ranking and hard-right Republicans to their positions on the bench. Both were members of the right-wing Federalist Society. They were also two of the least experienced and youngest judges on their respective benches, with 34-year-old McAfee having only been appointed months before he was handed the Trump case and Cannon having been one of Trump’s last-ditch appointments as he was being driven from office kicking and screaming.

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That’s where the similarities have ended, though. Cannon has done everything in her power to obstruct the federal classified documents case against Trump. McAfee has run all of his proceedings, including this conflict proceeding, in as orderly a way as possible, ultimately applying the correct law to allow Willis to stay on the case. True, McAfee is just doing his job, and nothing more. In a judiciary as ravaged by partisanship as ours, though, this basic adherence to the facts and the law can come as a shock.

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A lesser judge could have easily taken the cheap way out, stretching the appearance of impropriety to an actual conflict of interests to dump a case mired in controversy and drama. McAfee has received threats and was, according to the Washington Post, even subject to a “swatting” incident earlier this year at his home (and that of his wife and two young children). One need not be a political hack to say that dealing with such threats to family might not be worth protecting a prosecutor who had “repeatedly” made “bad choices,” as he put it. Instead, though, McAfee followed the law.

All of this moves the court one step closer to actually trying the case against Trump and his alleged co-conspirators. On Friday, McAfee also moved his courtroom that much closer to demonstrating the rule of law still works in this country.

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QOSHE - The Trump Trial With the Wrong Prosecutor but the Right Judge - Jeremy Stahl
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The Trump Trial With the Wrong Prosecutor but the Right Judge

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15.03.2024
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District Attorney Fani Willis will be able to continue in her RICO prosecution of former President Donald Trump and his associates, the judge in that case ruled on Friday, when he rejected the argument that she be disqualified from the case over allegations of a conflict of interest stemming from a romantic relationship with a co-prosecutor. The judge, Scott McAfee of Fulton County Superior Court, rejected the motion that would likely have torpedoed one of the most powerful criminal cases against the former president. Instead, he chastised Willis for poor judgment but allowed her to stay on the case so long as her former romantic partner, special prosecutor Nathan Wade, withdraws from the proceeding.

This was the exact right outcome. While Fani Willis’ performance on the stand during a multiday hearing over the conflict question—and her decision to keep the relationship with Wade private while paying him a salary—was indecorous and crossed the line of prosecutorial propriety, the defense was unable to prove a conflict of interest required by Georgia law for full disqualification. At the same time, as McAfee wrote, “The appearance of impropriety remains,” and the best possible way to resolve that is for Wade to leave the case.

Related From Slate

Mark Joseph Stern

Here’s the Real Person to Blame for that GOP Prosecutor Who Shivved Biden

Read More

The entire episode has demonstrated that this proceeding against Trump may be led by the wrong prosecutor, a fact that was not at all clear when the case began with such promise last August. Willis had a string of early major wins, but her missteps with Wade and the resulting harm to the case’s perception in the court of public opinion........

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