SO !

JC’s take

The Fani Willis decision dropped this morning while I was writing my post, and I had to stop, read, then delete and restart this section. I just couldn’t make you guys wait, you’ve been so patient with the vacation schedule already.

In an exhaustive 23-page decision that included the welcome words, “stench of dishonesty,” disappointingly the judge went with something closer to my second proposed option from yesterday, and did not outright disqualify Fulton County’s gangsta DA Fani Willis. But the decision wasn’t exactly like either of my predictions, either, except that I did say there was a chance the judge would surprise us all and play 4-D chess.

He did.

Georgia’s local WTOP ran the story headlined, “Fulton County DA Fani Willis must step aside or remove special prosecutor in Trump case, judge says.”

This morning, Judge Scott McAfee entered his order explaining he found the “allegations and evidence legally insufficient to support a finding of an actual conflict of interest,” but said there remains an “appearance of impropriety.” Here is a link to the judge’s 23-page order on my dropbox server.

The order was as fine a bit of judicial baby-splitting as I can recall. While the order let Fani off the hook, sort of, it also created another difficult dilemma for her, and provided everything the court of appeals needs to overrule him and toss Fani out on her plump backside if it wants.

This is important. The decision revolved around the difference between an actual conflict of interest versus just an appearance of impropriety. The former requires dismissal, the latter requires the judge to try to cure the problem and not dismiss the case, if possible.

Here’s the paragraph that was remarkably similar to my prediction from yesterday, where the judge found that Defendants hadn’t met their burden of proving an actual conflict of interest:

After receiving two and a half days of testimony, during which the Defendants were provided an opportunity to subpoena and introduce whatever relevant and material evidence they could muster, the Court finds that the Defendants failed to meet their burden of proving that the District Attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor. The other alleged grounds for disqualification, including forensic misconduct, are also denied.

The judge noted the Defendants’ evidence only showed a minimal actual conflict of interest. For instance, he pointed out that, despite having access to Nathan Wade’s credit card statements, the Defendants only found about $15,000 in potential gifts. While he seemed properly skeptical of Fani’s silly “cash horde” excuse, he also noted the Defendants didn’t disprove that ridiculous story either. Since Fani’s cash horde story wasn’t completely implausible, he had to accept it as evidence.

I should stop and say the lack of evidence wasn’t the Defendants’ fault. While I could always quibble at their choices, and while hindsight is always 20-20, the Defendants’ lawyers weren’t given time to take depositions. Depositions would have made a huge difference at the hearing. Fighting one handed, they did the best they could with what they had.

But the second half of the split judicial baby was the appearance of conflict. Because Judge McAfee found an appearance of impropriety existed, the judge can force Fani to make a difficult choice: quit, or fire her love puppy Nathan.

However, the established record now highlights a significant appearance of impropriety that infects the current structure of the prosecution team – an appearance that must be removed through the State’s selection of one of two options.
The prosecution of this case cannot proceed until the State selects one of two options. The District Attorney may choose to step aside, along with the whole of her office, and refer the prosecution to the Prosecuting Attorneys’ Council for reassignment. Alternatively, SADA Nathan Wade can withdraw, allowing the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.

The judge scrupulously avoided wading into the tumultuous waters of deciding whether the District Attorney herself committed any crimes, such as perjury over when the physical relationship began. He said it ultimately didn’t matter. “Even if the romantic relationship began after Nathan Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation,” the judge wrote.

Overall, I found the decision well-written and well-reasoned, even if I disagreed with how the judge weighted certain things. (At one point, I noted the judge cited the Federalist papers, a sign of intelligence.) His baby-splitting remedy was driven by the legal distinction between the lack of an actual conflict of interest while finding the appearance of a conflict of interest.

The case law provides different, less severe, remedies under the “appearance” standard. Most importantly, the judge cited a Georgia Supreme Court case saying he was required to consider a “range” of remedies, reserving disqualification or dismissal for only the most extreme cases where no other remedy will fix the problem.

Having done that much, the judge didn’t do Fani any other favors. After reiterating that his hands were tied because he couldn’t find an actual conflict on the presented evidence, he commented rather extensively on Fani’s repeated bad choices and the ethical issues. He stopped short of accusing Fani and Nathan of lying, but said it sure smelled like lying to him:

………see above for this part of the judgement……………

Both sides will appeal this ruling. By forcing Fani to quit or fire Nathan — which he knows she won’t do until she completes the appeal — the judge just deadlocked and effectively stayed the case until all appellate options have been exhausted. And once that process completes, assuming Fani survives all the other attacks coming her way outside the courtroom, then she will still have to deal with the dismissal of six key counts that the Judge entered two days ago.

Thus, there is now zero chance of a trial before the November elections. And Trump still has a pending presidential immunity defense percolating through the Supreme Court that could knock the case out in the meantime while it sits idle.

So I will go out on a limb and say, in my opinion, this very smart judge was playing four-D chess. This decision, though disappointing in the short term, might be much better in the long term than an outright disqualification would have been. Disqualification and dismissal are extreme remedies that would have been vulnerable to reversal by the wrong appellate panel. And it leaves a badly-injured DA floundering around the case.

Judge McAfee is heading for an appellate court appointment regardless of what happens in his election.