Legal Law

Georgia Prosecutors Should Go, But That Won’t Necessarily End the Case Against Trump – JONATHAN TURLEY

Chris Christie once said that Donald Trump is often portrayed by legal counsel as “the unluckiest S.O.B. in the world.” Perhaps, but when it comes to his enemies, Trump sometimes seems to find advantages despite his worst efforts.

Many of us have criticized Trump for his personal attacks on Fulton County District Attorney Fani Willis as being racist and unethical; he even accused her of having an affair with a gang member, a claim that was widely contested as unfounded and denied by key figures.

This month, however, Willis has seemingly imploded with an ethical scandal which, unlike Trump’s prior claims, appears perhaps to be more well-founded, as it appears in an official court filing. It involves reports of an intimate relationship with Nathan Wade, appointed by Willis as lead prosecutor in the Trump case. While a recusal or removal of Willis may delay the case, it will not end the legal threat for Trump.

Willis is accused of having a romantic relationship with Wade when she appointed him in this historic prosecution of a former president. Wade has no experience in racketeering law, yet he reportedly was paid more than an expert on Racketeer Influenced and Corrupt Organizations (RICO) cases.

Willis and Wade allegedly went on lavish vacations together, and the costs allegedly were covered by Wade, who has received nearly $654,000 in legal fees since January 2022 — approved, ultimately, by Willis.

Wade has presented himself as the “only individual in the DA’s office who had authority to enter into agreements pertaining to the investigation.”

Wade also has been held in contempt in his messy divorce.

The Georgia courts have established that a district attorney should be disqualified when there is a personal interest in the defendant’s conviction (Whitworth v. State, 275 Ga. App. 790, 793, 622 S.E.2d 21 [2005]). In this instance, Willis has staked much of her career on this case and appointed a prosecutor who’s alleged to be romantically involved with her; likewise, if the allegations are true, Willis may have an interest in furthering Wade’s career and benefits. Of course, Trump, the other defendants, and the public are entitled to disinterested prosecutors in this major case.

Moreover, the Fulton County Code of Laws § 2-66 bars conflicts of interest “in fact and in appearance.” It expressly states that no “officer or employee shall, by his or her conduct, give reasonable basis for the impression that any person can improperly influence him or her, or unduly enjoy his or her favor, in the performance of any official acts or actions.” These provisions are in addition to prohibitions on the receipt of gifts due to one’s office, such as possibly receiving alleged lavish vacations paid for by your subordinate.

These are just some of the grounds supporting a motion by Michael Roman, one of the defendants in the massive racketeering case brought by Willis.

If these allegations are true, Willis is not just outside of the ethical navigational beacons. She is off the map.

Notably, Willis decided to respond to these serious allegations after days of criticism by speaking before the Bethel AME Church in Atlanta. She did not deny having an intimate relationship with Wade. Instead, she claimed that the criticism was due to their race. After all, she noted, her critics are not questioning the two white people she appointed. However, she failed to mention the salient fact — that she was not allegedly involved romantically with the other two prosecutors.

They only attacked one,” she proclaimed. “First thing they say, ‘Oh, she’s gonna play the race card now.’

Well, not just the first thing. It will probably be the last thing “they” say, too.

This effort to spin an allegedly unethical relationship as a racist attack is itself a disgrace. Willis, the highest-ranking prosecutor in her jurisdiction, certainly can defend her hiring of Wade — but she should not trigger racial tensions to shield herself from scrutiny.

All of this leads to an inescapable conclusion: Both Willis and Wade should recuse themselves from the case. Their continuation in the case undermines the prosecution and is clearly not in the public interest.

A less obvious question is how their recusal could impact the Trump prosecution. Some analysts suggest the scandal removes the threat to him in Fulton County. That, however, is not likely to be true.

The remedy in this instance for any unethical conduct, if proven, may be the removal of the prosecutors, not the dismissal of an otherwise valid criminal case. While I have been critical of Willis’ case against Trump, her conduct does not change the underlying allegations against the former president.

The removal of Willis and Wade could also prompt the transfer of the case to a different jurisdiction.

Any of these changes could take time, of course, and the delay would play to Trump’s advantage. Yet, the case still would go on.

The most intriguing question is whether a new prosecutor would continue to support this controversial RICO case. Every prosecutor is under a personal obligation to determine whether there is an ethical basis to prosecute. Some prosecutors would likely balk at the tenuous connections used to sweep Trump into this grand conspiracy theory, which many critics believe Willis has pursued for political purposes.

Thus, an outside prosecutor might not share her priorities for prosecution. The Georgia case has a number of credible criminal charges against various defendants. The question is whether there would be the same overriding interest in bagging Trump under this novel alleged criminal enterprise.

Willis once reminded her staff that “this is business, it will never be personal.” The problem is that the current scandal suggests it may have been a bit too much of a personal business when it came to appointing her lead prosecutor. The best way to protect this prosecution — and the office — is for her to step aside and allow justice to take its course — without Willis or Wade.

Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.

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