Could Fani Willis, Sidelined by Secret Romance, Take Back Her Case and Prosecute President Trump While He’s in Office?

The district attorney of Georgia’s Fulton County, Fani Willis, is doubling down on her efforts to claw back onto her sprawling racketeering case against President Trump — whom she calls “the convicted felon in the White House” — from which she was disqualified for her secret romance with her special prosecutor.Her petition to the Georgia supreme court this week asks the Peach State’s highest judicial body to overrule the state’s court of appeals. That tribunal determined that hers was “the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings.”The Georgia court of appeals, though, did not elect to dismiss the charges brought in by a jury at Fulton County, which comprises much of downtown Atlanta, reckoning that such a move would be “extreme.” That means that if Ms. Willis can convince the high court that she suffered from what she calls “an utterly novel application of the standards for disqualification,” the case could roar back to life. First, though, Ms. Willis, who won re-election last fall, will have to convince Georgia’s supreme court to take the case at all. That tribunal, like the United States Supreme Court, possesses the power of discretionary review, meaning that the judges could elect to pass on the district attorney’s appeal. If they do, the ruling from the court of appeals stands unless Ms. Willis can happen upon some federal grounds to entice the Nine to intervene, a possibility that appears remote.Ms. Willis writes to her state supreme court that the appellate court “managed to exceed its authority” when it purged her from the case. The order to disqualify her amounted to an overruling of the trial judge, Scott McAfee. Judge McAfee reached his decision after days of hearings in open court that sought to pinpoint the relationship between Mr. Wade and Ms. Willis. Judge McAfee found that Ms. Willis’s romantic and pecuniary relationship with the special prosecutor she hired, Nathan Wade, emitted an “odor of mendacity” with respect to the couple’s claims that the romance did not pre-date Ms. Willis’s hiring of Mr. Wade. The judge determined that the affair amounted to a “significant appearance of impropriety.”Judge McAfee determined that the impropriety engendered by Ms. Willis overseeing Mr. Wade while also dating him — and traveling together to places like Aruba, Belize, and Napa Valley — could be remedied by one of them departing the case. Mr. Wade stepped aside that same day. Mr. Trump and his co-defendants adduced cellular telephone data that appeared to show Mr. Wade and Ms Willis were romantically involved before he was hired, which the couple denied under oath. A disgruntled ex-roommate and employee of Ms. Willis’s also testified in the hearing that the two were an item before Mr. Wade’s hiring. The court of appeals appeared to be persuaded on that point — that the romance pre-dated the hire. The appellate court reasoned that Mr. Wade’s departure was insufficient because it did “nothing to address the appearance of impropriety that existed at times when DA Willis was exercising her broad pretrial discretion about who to prosecute and what charges to bring.”Ms. Willis’s case for review contends that the “overall impression” from the lower court ruling is “that the phrase ‘appearance of impropriety’ can be invoked in the place of careful analysis of the case at hand, the lack of precision surrounding its use must be addressed by this Court.” The district attorney argues that her case could be an opportunity for Georgia to not only save her skin, but also clarify a cloudy point of law. There is no statutory deadline that dictates when Georgia’s supreme court is required to decide.The district attorney’s hopes to snag supreme court review is bolstered by the surfacing of a dissent on the court of appeals itself, which ruled against Ms. Willis by a 2-to-1 margin. Judge Benjamin Land wrote that he was “particularly troubled by the fact that the majority has taken what has long been a discretionary decision for the trial court to make and converted it to something else entirely.” Both Judge Land and Ms. Willis draw in sharp relief an untested question in Georgia courts — is an “appearance” of impropriety” enough to disqualify a district attorney? Judge Land writes that “for at least the last 43 years, our appellate courts have held that an appearance of impropriety … provides no basis for the reversal of a trial court’s denial of a motion to disqualify.” Ms. Willis’s disqualification, though, sets a new precedent. Ms. Willis has shown no indication of being chastened by her disqualification, which could mean that if she is reinstated, the case against Mr. Trump could gain new life. She has promised that “the train is coming” to convict the 47th president. At a gala celebrating her re-election, she was seated at the same table as Mr. Wade. She claims that their romance is over. Police bodycam video disclosed that Mr. Wade also showed up, in September of last year, with Ms. Willis on the side of a Georgia highway after Ms. Willis’s pregnant daughter was arrested for driving with a suspended license. Mr. Wade has ventured on television that workplace affairs are as “American as apple pie.”Mr. Trump has argued that presidential immunity protects him from state criminal cases, though a court has never decided that question. The Department of Justice drew down Special Counsel Jack Smith’s cases after determining that there is a “categorical” prohibition on prosecuting a sitting president, though that is binding only on federal attorneys, not local ones like Ms. Willis.The closest precedent are District Attorney Alvin Bragg’s 35 convictions against Mr. Trump for falsifications of business records in the service of hush money payments to an adult film star, Stormy Daniels. Judge Juan Merchan ruled that sentencing candidate Trump did not wound the office of the president. Now, though, Mr. Trump is back in the White House, and the United States Supreme Court could take a dim view of further state prosecution. Ms. Willis has other concerns in Georgia. Her arguments for quashing a subpoena issued by the state senate were characterized as “absurd” by a trial judge at Fulton County, and her efforts to stall on a freedom of information request from a conservative legal group, Judicial Watch, were termed “suspicious” by another judge.

Could Fani Willis, Sidelined by Secret Romance, Take Back Her Case and Prosecute President Trump While He’s in Office?

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