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Guest Essay
By Clark D. Cunningham
Mr. Cunningham, an expert in legal ethics, is a law professor at Georgia State University.
The case against Donald Trump in Georgia for allegedly participating in a criminal conspiracy to interfere with the 2020 election is more important than any individual actor managing the prosecution, and that includes the Fulton County district attorney, Fani Willis, and the case’s lead prosecutor, Nathan Wade.
In recent weeks, Ms. Willis and Mr. Wade have found themselves in a spotlight that should belong to the serious charges against Mr. Trump. The two are the focus of a legal motion, and ensuing news reporting about a possible romantic relationship between them has explored whether it amounts to a conflict of interest with regard to the case.
I’m a law professor in Georgia who teaches ethics and who has studied the legal consequences that might come if Ms. Willis and Mr. Wade are found to have a conflict, and I believe the judicious and farsighted course would be for Ms. Willis to take a personal leave of absence and turn over control of the district attorney’s office, and the case against Mr. Trump, to a career deputy district attorney.
Doing so would be an act of public service by Ms. Willis — and more important, offers the best option for keeping the criminal case on track and holding Mr. Trump and his co-defendants accountable for their actions in the 2020 election if that is the just outcome.
The motion is, at a minimum, likely to cause a delay in the Trump case. But it also threatens the case’s integrity.
The motion from one of the co-defendants, Michael Roman, against Ms. Willis — which seeks to have Mr. Wade, Ms. Willis and her office removed from the case, and to dismiss the charges against him — contained no proof of a relationship, but subsequent reporting from The Atlanta Journal-Constitution appears to corroborate some of the accusations, at least in part.
Ms. Willis has been given a Feb. 2 deadline to respond to the accusations. She and Mr. Wade could fight the motion and stay in the case, and Judge Scott McAfee, who is in charge of the Trump criminal case, has scheduled a hearing in mid-February.
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 and Mr. Wade 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. (Pretrial motions for most defendants were due in January, and Ms. Willis previously suggested an August start date for the trial, even though, following the grand jury indictment in August 2023, she suggested the prosecution would be ready for trial dates as early as October 2023 as well as March 2024.)
Georgia’s Supreme Court has said that a district attorney must be disqualified if the D.A. has “acquired a personal interest or stake” in the defendant’s conviction. Lawyers for Mr. Trump and his co-defendants are likely to argue that Ms. Willis and Mr. Wade concocted the extensive special grand jury investigation — which has spanned about seven months and involved some 75 witnesses — and the subsequent 98-page, 41-count indictment against 19 defendants, to make money for themselves by enabling Mr. Wade to bill the D.A.’s office more than $650,000 for working on both the grand jury investigation and the prosecution of the indictment.
I don’t know if these lawyers’ argument will succeed. However, they will be able to cite several factors that seem unusual in this case.
Mr. Wade was very involved in both the special grand jury investigation and the current criminal case, despite an absence of obvious qualifications. Although Ms. Willis has defended her decision to hire Mr. Wade, his previous experience as a prosecutor appears to have been largely limited to misdemeanors.
The amount paid to Mr. Wade so far is substantial yet Mr. Wade’s billing invoices obtained by Mr. Roman’s lawyer are not well documented and don’t always offer, for example, itemized time worked in increments of less than one day.
If Ms. Willis and Mr. Wade are dismissed by Judge McAfee, it would be up to a state agency, the Prosecuting Attorneys’ Council of Georgia, to appoint a prosecutor to take over from Ms. Willis.
And that’s where things could really go off the rails. Take one precedent: On July 25, 2022, Ms. Willis was disqualified from prosecuting Burt Jones, who was then a state senator, after she hosted a fund-raiser for Mr. Jones’s eventual opponent in the race for lieutenant governor. Eighteen months later, the PACGA still hasn’t appointed a special prosecutor, and Mr. Jones, now lieutenant governor, has not even been indicted.
Delay is not even the worst possible outcome for the case if Ms. Willis is disqualified. A special prosecutor could decide to reduce or dismiss charges against some or all of the defendants, including Mr. Trump.
In 2020, Fani Willis won the district attorney election in Fulton County after defeating the incumbent, Paul Howard. He had been severely criticized for his decision to indict two Atlanta police officers in the case of Rayshard Brooks, who was shot during an attempted arrest. Ms. Willis requested that the case be referred to a special prosecutor, based on concern over Mr. Howard’s possible misconduct, and the director of PACGA, Pete Skandalakis, was appointed as special prosecutor.
After two years, in 2022, Mr. Skandalakis announced he had decided the officers committed no crimes and dismissed all charges.
Even if, next month, Judge McAfee denies the motion to disqualify, the case may still be knocked off track for a long time. The defendants would likely ask Judge McAfee to allow a discretionary appeal, which might be granted along with a stay of the criminal case pending the appeal. And then whoever loses in the Court of Appeals will ask for Georgia’s Supreme Court to review the issue, possibly delaying the case for additional months.
Perhaps even before the Feb. 2 deadline for filing a response to Mr. Roman’s motion, Ms. Willis could take a personal leave until the case has concluded, appointing a chief deputy as acting district attorney during her leave. The acting district attorney could then decide to terminate Mr. Wade’s contract immediately and respond on Feb. 2 that the motion is no longer relevant. If Mr. Wade isn’t making money from the case anymore and Ms. Willis has relinquished control, then the argument of personal financial interest in the continued prosecution disappears.
To be clear, I say this as someone who has generally approved of the way Ms. Willis has handled the case. And I believe that the indictment against Mr. Trump and his co-defendants has a solid factual and legal foundation.
For Ms. Willis, taking a personal leave need not be considered an admission of wrongdoing. This is the most important case in Georgia right now, arguably the most important case in the nation, and potentially of historic significance.
Choosing the option that has the best chance of keeping the case on track, even at a personal cost, is the right decision for Ms. Willis to make as a public-spirited official.
Clark D. Cunningham. an expert in legal ethics, is a law professor at Georgia State University.
Source photographs by Kenny Holston/The New York Times and Ryan McVay/Getty Images
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