Is appearance of impropriety enough to oust Fani Willis from Trump case?

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The Fulton county DA argues her relationship with special prosecutor Nathan Wade is not a conflict – judge will rule on whether that matters

Is the appearance of impropriety enough to change the trajectory of the Donald Trump trial in Georgia?

That’s one legal question Scott McAfee, the Fulton county superior court judge, will wrestle with as he contemplates whether to throw the Fulton county district attorney Fani Willis and special prosecutor Nathan Wade off the trial of the former president and co-defendants in the sprawling racketeering and election interference case.

The stakes are high. If Willis is disqualified, it will plunge the prosecution against Trump, and others, into chaos, likely triggering delays that could go beyond the November election. If Willis remains, the prosecution of the former US president for seeking to undermine Georgia’s 2020 election will continue – though it will be badly damaged in terms of political optics.

Defense attorneys argued early in the hearing Friday on the defense motion to remove Willis and her office from the case that the standard for disqualifying Willis requires only that the defense prove the appearance of conflict of interest.

“She is supposed to be disinterested under the sixth amendment, and she has been anything but that,” argued attorney John Merchant, who is representing Michael Roman, a former Trump campaign official and co-defendant in the trial. “If this court allows this kind of behavior to go on … public confidence in the system will be shot.”

Willis’s team countered that the legal standard isn’t an appearance of a conflict, but an actual conflict, and that it’s a high burden that the defense hasn’t met. If Willis had concocted a scheme of self-enrichment with Wade, she would not have approached two other people to lead the prosecution first, nor would she have been pushing for the earliest-possible date to begin the trial, said Adam Abbate, an assistant district attorney for Fulton County.

McAfee expressed a sense of ambiguity in case law related to prosecutorial disqualification, noting that there was no clear-cut previous example resembling the issue before him.

“There are a number of cases that appear to exclusively rely on an appearance of impropriety,” McAfee said. “They acknowledge that there is some ambiguity here.”

Testimony has centered on when Wade and Willis began dating, whether Willis had unjustly enriched herself by financially benefitting from a relationship with Wade – retained as a government contractor in the case – and how much value to place on that testimony and other evidence.

McAfee seemed poised to entirely discount the testimony of Wade’s former law partner, Terrence Bradley, whose text messages to Roman’s attorney Ashleigh Merchant arguably launched the explosive revelation of Willis’s relationship with Wade in the disqualification motion in January. Bradley denied knowing anything of detail when finally put to question on the stand.

The district attorney’s office argued that phone data presented by the defense tracking Wade’s phone did not meet legal standards of evidence, and did not show him at Willis’s home when Willis was there.

But Roman’s defense attorneys raised a second set of arguments for disqualification in their closing: that Willis’s speech before congregants at Big Bethel AME church in downtown Atlanta, days after the disqualification filing, constituted “forensic misconduct”, in which a district attorney unduly influences the jury pool or inappropriately demeans the character of defense counsel.

During the prepared church speech, Willis, citing comments by the Fulton county commissioner Bridget Thorne “and so many others”, described questions about her decision to hire Wade as a special counsel as racially motivated.

“Oh, Lord, they’re going to be mad when I call them out on this nonsense. The first thing they’ll say: ‘Oh, she’s going to play the race card now.’ But no, God, isn’t it them who’s playing the race card when they only question one?” she said. “Isn’t it them playing the race card when they constantly think I need someone from some other jurisdiction in some other state to tell me how to do a job I’ve been doing almost 30 years?”

Defense attorneys did just that Friday.

“She chose to pull the race card and the God card,” said Craig Gillen, who represents the former Georgia Republican chair David Shafer, one of the 19 charged in the case. “She chose to deflect and to say ‘them’ and the others and ‘they’ … choose to go after the Black man.” Gillen argued that the speech had been tantamount to jury tampering by characterizing her courtroom opponents as racists.

“What is she saying? The listener is not necessarily in that audience in that church. It’s in Fulton county, the potential jurors who will come into a courtroom,” Gillen said. “She chose to inject race into the minds of the listeners and virtually everybody in this community.”

Though almost every defense attorney raised similar concerns about Willis’s “church speech”, McAfee noted that he knew of no case example of a district attorney being pulled off a trial for public comments about a case.

McAfee said at the end of final arguments that he would rule on the matter within the next two weeks.