The Fani Willis Trump fiasco is far from over. In fact, it's just getting started
On Thursday, the Georgia Court of Appeals disqualified Fulton County district attorney Fani Willis from prosecuting President-elect Donald Trump and others for alleged 2020 "election interference." The Court held that Willis suffered from a conflict of interest because she hired her paramour, Nathan Wade, as a special counsel to investigate Trump.
Basic legal ethics and common sense dictate that both Wade, who resigned last March, and Willis had to go. The appellate court did not dismiss the indictment, stating that the record did not support imposing such an "extreme sanction." The Prosecuting Attorneys’ Council of Georgia will now assign the case to a different prosecutor who will decide whether to continue, narrow, or drop the flawed RICO case.
There was never any question that Willis suffered from a conflict of interest; but like the other prosecutors who pursued Trump in the name of democracy, she threw all caution to the wind. For example, in July 2022 Willis attempted to investigate Trump ally State Senator Burt Jones even while headlining a huge fundraiser for Jones’s Democrat opponent. A judge had to bar the prosecution because of the clear conflict of interest.
GEORGIA APPEALS COURT DISQUALIFIES DA FANI WILLIS AND HER TEAM FROM TRUMP ELECTION INTERFERENCE CASE
A government official hiring her paramour is almost always questionable in and of itself. What’s worse is that Willis hired Wade after she already had hired Georgia’s premier RICO expert. She hired Wade even though he openly admitted that he had no prior felony or RICO prosecution experience. Willis paid Wade a higher hourly rate than a regular counsel and did nothing when Wade far exceeded even those amounts.
Some estimates place Wade’s total county income at over $650,000 per year – three to four times the salary of a regular prosecutor. Their many romantic trips and late-night meetings, which the judge examined on national television, exacerbated their conflicts of interest.
The Georgia appeals court inevitably found that the Trump prosecution was "encumbered by [a significant] appearance of impropriety" and carried "an odor of mendacity" such that Willis was "not exercising her independent professional judgment totally free of any compromising influences."
Willis and Wade also failed to voluntarily and timely disclose their romantic and financial relationship to the defense, and therefore failed to meet their "specific obligations to see that the defendant is accorded procedural justice" under Georgia law. The rules also state that a prosecutor’s "duty is to seek justice, not merely to convict. This special duty exists because the prosecutor represents the sovereign and should exercise restraint in the discretionary exercise of governmental powers."
Willis exercised no such restraint and Thursday’s decision saves the Georgia courts from having to later preempt her deeply flawed prosecution. Willis’s investigation threatened not just Trump, but also the office of the presidency.
Other prosecutors, such as Manhattan D.A. Alvin Bragg or U.S. Justice Department special counsel Jack Smith, lodged narrow, if creative, charges against Trump that they hoped would be easier to prove.
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Willis, in a striking example of prosecutorial overreach, charged Trump and his associates with running a vast RICO conspiracy that included almost every significant act of his campaign between Election Day 2020 and the January 6, 2021, attack on the Capitol, and beyond. She claimed 161 alleged acts, 19 charged defendants, 30 unindicted co-conspirators, and involved 7 states and the District of Columbia. This not only ran afoul of the First Amendment free speech rights of Trump, the co-defendants, and the Republican Party, it also posed a threat to all future presidents, who would have to worry about state legal liabilities when making the most difficult decisions in the nation and engaging in his duties.
For example, Trump’s post-2020 election televised speeches and tweets are protected speech and political activity, regardless of whether his statements turned out to be accurate. Trump’s plan to create alternate slates of electors and the legal advice supporting it, the cornerstones of Willis’s RICO charge, were within the bounds of reasonable legal argument. In the 1876 election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden, Tilden won the popular and electoral college votes, but Republicans challenged the election results in Florida, Louisiana, and South Carolina, on the ground that Democrats had engaged in election fraud and intimidated Black voters.
Hayes eventually won with 185 electoral votes, but Democrats had presented alternate slates of electors from multiple states. No one was criminally charged.
In the 1960 presidential election, Democrats challenged Nixon’s initial win in Hawaii, signed alternate electoral vote certificates, and sent them to Capitol Hill. No one was criminally charged.
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After the 2016 election, the Hillary Clinton campaign and allied liberal groups recruited celebrities and others to importune electors to not cast their electoral votes for Trump; again, no one was investigated or charged.
Proposing alternate electors in the event that Congress or a court rejected a state’s vote as fraudulent falls within the free speech rights of a political campaign.
Furthermore, the prosecution failed to meet the standard requirements for a RICO prosecution. Neither Trump nor his co-defendants tried to gain money, property, or control of a business with their post-2020 election activities. Nor did they demonstrate any interest in initiating or joining a criminal enterprise to gain property, money, or businesses. Instead, Trump wanted to win the 2020 election, which is not illegal; fighting to stay in office would have ended one way or the other by inauguration day in 2021.
But the most serious flaw with Willis’s now-disgraced prosecution of Trump was its threat to the office of the presidency. Willis’s prosecution was part of the Democratic Party’s plan to break political and legal norms that had held for the history of the republic – all in the name of defeating Trump.
For the first time in American history, they brought criminal charges against a former president and the major, leading opposition presidential candidate during the actual campaign. If elected leaders, whom our constitutional system vests with the authority over prosecution, must break American political practice going back to 1789, they should do so for a compelling reason and with a case where the prosecution’s facts and law are airtight. Instead, Willis brought charges that were destined to fail in court and were clouded by her own conflicts of interest and potential financial corruption.
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But once Willis brought charges against Trump for his actions while in office, future presidents must factor prosecution into their calculus. And investigators may not even wait until after a president has left office.
State prosecutors could charge presidents while the latter are still in office; nothing in the Constitution requires states to wait.
This may well make presidents risk-averse, especially when partisan, elected prosecutors are the ones launching the investigations. At the very least, defending against one or more state criminal investigations will draw on the time and resources that a president could – and should – instead devote to carry out his constitutional responsibilities and protecting national security.
These concerns led the U.S. Supreme Court to grant former presidents sweeping immunity from federal prosecution for their official acts in Trump v. United States. But the Trump Court’s decision – broad as it was – does not reach (a) investigations by state prosecutors, (b) for alleged violations of state law, (c) by presidents acting in their private capacities. While the Trump Court held that courts should not allow any evidence, even when used to prove state crimes, from official presidential activities, it did not prohibit state prosecutors from proceeding against Trump.
Not only did Willis’s prosecution harm the presidency in the ways that concerned the Trump Court, it also promised to spark a cycle of retaliation that would further destroy important legal and political norms.
Nothing will prevent elected Republican district attorneys from opening investigations into Hunter, James, or even President Joe Biden for corruption, bribery, and money laundering – all they need is some link between the Bidens’ criminal enterprise (to borrow the Georgia description of the Trump campaign), and their jurisdictions. Opening such probes would make for good campaign fodder in deep-red counties; some D.A.s might even pursue charges just to engage in tit-for-tat retaliation for the New York City and Georgia charges.
While Democrats may embrace state prosecutors like Bragg and Willis, they should instead consider the whirlwind that they have now unleashed and choose to do the right thing: drop their legally flawed cases against President Trump.