Trump Has a Secret Weapon in His Effort To Disqualify ‘Unethical’ Fani Willis Over Secret Romance — Georgia Law

The 45th president makes his case to the Peach State’s court of appeals, which will have wide latitude to rule in his favor.

Photo by Dennis Byron-Pool/Getty Images
Fulton County District Attorney Fani Willis appears before Judge Scott McAfee for a hearing in the 2020 Georgia election interference case at the Fulton County Courthouse on November 21, 2023 at Atlanta. Photo by Dennis Byron-Pool/Getty Images

President Trump could have a secret weapon in his push to disqualify the district attorney of Fulton County, Fani Willis, from prosecuting him and 18 others for racketeering and other crimes — the black letter Georgia law that governs appeals like the one Trump has mounted. 

The 45th president’s petition is now before the Georgia court of appeals, which elected to grant Trump’s request to review Judge Scott McAfee’s decision to keep Ms. Willis on the case. That review tribunal has scheduled an October 4 date for oral arguments.

Trump is demanding that Ms. Willis be removed from the case due to the impropriety of her secret romance with her then-special prosecutor, Nathan Wade. He also argues that she poisoned the jury pool by making racially charged remarks about the case at a historic Black church at downtown Atlanta on Martin Luther King Jr. Day.

The state’s rules tell appellate judges that they possess the latitude to review “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below.” That means that while in theory Judge McAfee’s findings of fact are to be evaluated on an “abuse of discretion” standard — one difficult for the appellant to meet — in practice, the court of appeals is empowered to open up the whole record.     

Trump, in his opening brief to the court on what he calls this “all-important interlocutory appeal,” argues that “since launching the investigation, DA Willis has engaged in a pattern of consistently flouting her ethical obligations.” He also alleges that “her previous improper conduct was neither inadvertent nor isolated, and was both planned and part of a long-standing, wrongful practice.”

The 45th president argues that Judge McAfee’s decision is best analyzed not as a flawed finding of fact — trial judges are afforded wide leeway in that department — but as a mistaken ruling of law. When it comes to legal conclusions, appeals courts assess lower court rulings under a de novo standard, meaning “from the beginning,” or without deference.  

The court of appeals will consider Ms. Willis’s fate after Judge McAfee ruled that Ms. Willis could persist. He detected an “odor of mendacity” with respect to her affair with her special prosecutor and former boyfriend, Mr. Wade. Judge McAfee also found that some of her public remarks to be “legally improper” and that her behavior exhibited a “significant appearance of impropriety.”

Now, though, comes Trump to contend that Judge McAfee “abused his discretion” in declining to disqualify Ms. Willis. The 45th president argues that she should be disqualified “for intentionally and repeatedly violating ethical and professional canons to prejudice defendants for personal or political gain.” 

Trump will endeavor to persuade the court of appeals that Ms. Willis, “by persistently untethering herself from the legal, ethical, and professional constraints of her powerful position, has decimated the integrity of these proceedings.” The former president laments that the “circumstances that require her disqualification are entirely self-inflicted wounds.” 

The statutory authority that grants the court of appeals a wide berth for review — “all judgments, rulings, or orders”  — could end up being a boon for Trump, who will need the appellate court to reverse Judge McAfee if he is to dislodge Ms. Willis from the case. The district attorney maintains that Trump failed to marshall sufficient evidence for the appeal to be considered. 

Trump, though, suggests to the court of appeals that Judge McAfee’s assessment of the situation was incomplete, especially with respect to when the affair between Ms. Willis and Mr. Wade began. They testified under oath that the romance started after he was hired, one day after filing for divorce from his wife. 

Trump maintains that they were already romantically involved, an entanglement that compromised the case from its inception. The ex-lovers’ romantic timeline was also contradicted by Ms. Willis’s estranged college friend, Robin Yeartie, who testified before Judge McAfee that the romance began in 2019, well before Mr. Wade separated from his wife Joycelyn. 

Ms. Yeartie alleges that she saw the couple “hugging, kissing and being affectionate” before November 2021, when Ms. Willis hired Mr. Wade. If the testimony of Ms. Willis and Mr. Wade — and their sworn affidavits — are effectively impeached on appeal, the case for reversing Judge McAfee will grow stronger.

Judge McAfee demurred from finding that Ms. Willis lied, though he did invoke the “odor of mendacity” to characterize the tale told of the affair in this courtroom. Trump, possibly sensing an opening, writes to the appeals court that “cell records proved that, during the period that Willis and Wade claimed not to be romantically involved, there were 2073 calls and 9792 texts between them—an average of 6.2 calls and 29.3 texts per day.”

Another source of vulnerability for Ms. Willis could be the trips she took with Mr. Wade while he was serving as special prosecutor. They journeyed to locations like Aruba, Belize, and Napa Valley. Mr. Wade paid for those vacations with his credit card, and Ms. Willis argues that she paid him back with cash stored at her house. Her father testified that practice is a “Black thing.” 

Judge McAfee acknowledged that there is no “ledger” recording these transactions, but found her account “was not so incredible as to be inherently unbelievable.” Trump now asks the court of appeals to reconsider — among other facts and findings — what he calls “a wholly unsupported explanation of cash repayments.”  

The New York Sun

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