Fani Willis Agonistes

The fact that no one is going to be ecstatic at Judge Scott McAfee’s decision not to disqualify the district attorney of Fulton County, Fani Willis, doesn’t make it right. Not even by the judge’s own — to use a generous word — logic. In the decision this morning, our A.R. Hoffman reports, His Honor reflects that “whether this case ends in convictions, acquittals, or something in between, the result should be one that instills confidence in the process.”Fat chance, we say. The judge seems a decent, well-meaning jurist. The chances of his decision instilling confidence in the process, though, are zilch. The judge himself acknowledges an “odor of mendacity” in the behavior of Ms. Willis and her former boyfriend, whom she hired to be special prosecutor in the case at $250 an hour and with whom she then went on luxury vacations. How are the defendants supposed to be reassured by that?Judge McAfee, Mr. Hoffman notes, also called Ms. Willis’ speech at Big Bethel AME Church “improper” and marred by “racial aspersions.” He seems aware of what he calls the “danger of public comment by a prosecuting attorney.” So why brush aside the complaints about Ms. Willis essentially calling some of the defendants and their lawyers racists? The judge notes the “dangerous waters” but does not find that Ms. Willis “crossed the line.” What is a jury at Fulton County supposed to do after that? Ms. Willis didn’t have to make any speech — save for a court — after the motion acted on today was filed. Instead, she went up on one of the highest profile pulpits at Atlanta and accused her opponents of “playing the race card.” That’s just what prosecutors are enjoined not to do. How can one conclude anything other than that Ms. Willis wanted to poison the jury pool?There is no doubt that Judge McAfee’s split decision will be likened to the opinion Solomon handed down in respect of splitting the baby. Forgive the quip, but we knew Solomon and Judge McAfee is no Solomon. Given that the judge is prepared to let either Ms. Willis or the friend she hired to be special prosecutor stay on the case, one of them is likely to be in court when the matter goes before a jury. What’s going to happen to the baby, meaning justice? No wonder President Trump and the other defendants are likely to appeal. It will be up to Judge McAfee to certify such an appeal, and given the nature of the allegations, he would be wise to do so before the case moves forward. The “tremendous lapse of judgment” Judge McAfee ascribes to Ms. Willis is not so easily remedied as a common cold. The “appearance of impropriety,” the jurist notes, “must be handled before the prosecution can proceed.” The importance of appearances — legally and constitutionally — is what first caught our eye in this issue. For Judge McAfee to have found the “appearance of impropriety” is no small thing. Why in the world, then, brush it aside? Fulton County’s own ethics codes demand that even the hint of a conflict of interest be avoided. Another Georgia jurist could conclude that such a finding means that Ms. Willis is disqualified. Sometimes, a baby can’t be split. Let us not forget that the reason this needed to be addressed is that there are serious questions yet to be answered that hang over the charges handed up by Ms. Willis. The most important, in our view, is the potential abuse of the Racketeer Influenced and Corrupt Organizations Act with which she frames her case. We have been editorializing against RICO abuses since the Reagan era, and Judge McAfee could well see motions on this head. In theory, a trial with due process might help clear the air in Georgia. We don’t see where that’s on offer. This trial is among the most political in American history. In but seven months, the judge, the prosecutor, and President Trump will all be on the ballot at Fulton County. The judge’s decision may be a masterful political hedge. That doesn’t make it good law. What the judge calls “confidence in the process,” alas, awaits an appeal.

Fani Willis Agonistes

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