Even if the Affair Allegations Are True, Fani Willis Is Not Disqualified From Prosecuting Trump

No one is praising Fulton County District Attorney Fani Willis’ apparent romantic relationship with Nathan Wade, an attorney in private practice who she brought on board as a special prosecutor in the criminal investigation and now prosecution of Donald Trump and 18 co-defendants. We have not yet heard that much of Willis’ side of the story. However, based on what is known so far, it represents poor judgment—especially in a case of this magnitude, even if a prosecutor’s private life is generally none of the public’s business. Willis has already said publicly that she is “flawed” and “imperfect” in her public remarks at Big Bethel AME Church following the allegations. But whether there were personal failings is not the operative legal test for whether Willis or Wade should be disqualified from the case, and accordingly that question is not the focus of this essay. Prosecutors are human, and they can and do make mistakes. The question here is whether Willis’ and Wade’s apparent mistakes have any bearing on the election conspiracy prosecution in a way in which the law would require their removal from the case.

The motion filed by defendant Michael Roman seeks primarily to do just that—to disqualify Willis and Wade from further participation in this case. Under Georgia law, however, even if all the factual allegations regarding Willis and Wade were true, there would be no basis for disqualifying them from prosecuting Roman or any of the other defendants in the election conspiracy case.

The key point is that regardless of whether the factual circumstances involving Willis and Wade give rise to separate ethical concerns with respect to his hiring, such questions do not affect the propriety of the prosecution against Roman and his co-defendants. Questions about gifts and related matters go to Willis’ and Wade’s obligations to the Fulton County District Attorney’s Office, and have no connection to assuring the defendants a fair trial. These allegations are as irrelevant to the trial as allegations in other situations that prosecutors took office supplies for personal use, drove county vehicles for personal errands, or plagiarized portions of their student law review notes. All of those are legitimate issues—for prosecutors’ offices and those with oversight responsibilities to address—but such allegations do not bring criminal prosecutions to a stop or require that cases be transferred to a different office. Defense attorneys cannot use allegations of prosecutorial ethics violations, real or imaginary, that have nothing to do with a trial to delay or force prosecutors off of a case.

As a matter of both common sense and Georgia law, a prosecutor is disqualified from a case due to a “conflict of interest” only when the prosecutor’s conflicting loyalties could prejudice the defendant leading, for example, to an improper conviction. None of the factual allegations made in the Roman motion have a basis in law for the idea that such prejudice could exist here—as it might where a law enforcement agent is involved with a witness, or a defense lawyer with a judge. We might question Willis’ judgment in hiring Wade and the pair’s other alleged conduct, but under Georgia law that relationship and their alleged behavior do not impact her or his ability to continue on the case.

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Although the Georgia law on disqualifying a prosecutor would permit Wade to remain on the case as well, in our view he should voluntarily step down. His continued presence will create a distraction, and his departure, in addition to an on-the-record hearing in court, is the best path to dispense with any lingering concerns. Doing so will avoid any debate about even an appearance of impropriety going forward. Willis is an elected official and has an ongoing obligation to serve her constituents. Stepping down is the honorable thing for Wade to do and at the same time respect the interests of the electorate.

In this essay we provide a detailed analysis of the relevant legal questions. First, we review the law of prosecutorial disqualification in Georgia. Second, we explain why the Roman motion’s factual allegations, even if true, do not give rise to a conflict of interest that warrants disqualification of the prosecutors in Roman’s case.

Georgia law recognizes prosecutorial disqualification in exceptionally narrow circumstances, ones that are not alleged by the Roman motion. The Roman motion argues that three primary alleged factual circumstances amount to a conflict of interest warranting disqualification and, even more extremely, dismissal of the indictment against him:

• The alleged romantic relationship between Willis and Wade;

• The financial compensation Wade received as a special prosecutor; and

• The alleged personal........

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