Fani Willis’s ‘Impartiality’

One of the most stunning moments we’ve covered on the Constitution beat is the decision of the Second United States appeals circuit to remove Judge Shira Scheindlin from the case over what is known at New York as “stop-question-and frisk.” In the middle of the litigation, an exceptionally distinguished panel of judges* — with no warning or motion but acting sua sponte — just hauled off and tossed the judge from the case.What had caused the circuit riders to act was that they had sniffed an “appearance” of partiality. The partiality wasn’t decisive. The judge had laid claim to the stop-and-frisk case because she deemed it related to other cases on which she sat. The three appellate judges, though, reckoned that her action could give rise to an “appearance” of partiality. They came down on her like a ton of bricks.The reason we mention all this is because of what is happening at Fulton County, Georgia, in the criminal case against President Trump and more than a dozen codefendants. One of them, Michael Roman, has asked that the district attorney, Fani Willis, her alleged romantic partner, Nathan Wade, whom she hired as special prosecutor, and their office be removed from the racketeering case. One ground is the lack of the appearance of impartiality.We understand that there are differences between Judge Scheindlin and Ms. Willis. New York involved United States circuit riders enforcing a rule of impartiality and the other involves a state judge being asked to enforce a rule of impartiality. The common thread that glints most brightly for us is that the rule enjoins even the “appearance” of partiality. That is a high, but important, hurdle.Not insurmountable, though, at least in our view. Mr. Roman’s motion notes that Fulton County’s code of laws “declares it the policy of Fulton County government” that such officers as Ms. Willis are “in fact and in appearance, independent and impartial in the performance of their official duties.” The law, Mr. Roman notes, requires such officers as Ms. Willis, “to avoid even the appearance of a conflict of interest.” Mr. Roman quotes Fulton County’s code to the effect that an “appearance of a conflict of interest exists when a reasonable person would conclude from the surrounding circumstances that the ability of the officer or employee to protect the public interest or impartially perform a public duty is compromised by financial or personal interests in the matter or transaction.” This, by our lights, fits the Willis-Wade predicament exactly.Ms. Willis, Mr. Roman’s filing states, “has failed to remain ‘independent and impartial in the performance of her official duties’ because she specifically awarded lucrative contracts to her boyfriend, from which she now benefits financially through personal trips, hotel rooms, and the like paid for by Wade.” In other words, our officers have to deal impartially not only with those they are prosecuting but also with their colleagues.It’s already clear that Ms. Willis is bridling at the accusation that she breached this legally enacted standard of conduct. She is suggesting, among other things, that her critics are motivated by racism. One of her allies, Norman Eisen, is reported by the Washington Post to be arguing that Mr. Wade should step aside, even though, in his view, the law doesn’t require it, but that Ms. Willis should carry on, because she’s an elected official.We keep coming back to the ability of a judge to act on his own — sua sponte — when he smells even just an appearance of impropriety or partiality. After Judge Scheindlin was removed from the stop-and-frisk case, she turned around and appealed to the Second Circuit — raising the question, as the gobsmacked appeals panel put it, of whether a district judge may participate as a party or an amicus curiae in an appeal of her own decisions.The Second Circuit panel flicked her away again — owing to the rule on “appearance.” The circuit riders ordered the cases to be reassigned, they said, “not because of any judicial misconduct or ethical lapse” but solely pursuant to the law requiring the judge to disqualify herself “in any proceeding” in which her “impartiality might reasonably be questioned.” When she didn’t disqualify herself, the court did it for her — sua sponte.________* Jose Cabranes, John Walker, and Barrington Parker, Jr.

Fani Willis’s ‘Impartiality’

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