Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, March 17, 2024

A Few Thoughts on Judge McAfee's Decision

On March 15, 2024, Judge Scott McAfee denied the defendants’ motion to disqualify Fulton County District Attorney Fani Willis from the case involving the prosecution of former President Donald Trump and other defendants.

Below are a few observations from Judge McAfee’s decision and the hearing.

1.    Judge McAfee should have disqualified Willis.

Given the facts and evidence, Willis should have been disqualified. Her conduct demonstrated an actual conflict of interest and the appearance of a conflict of interest.

First, on January 14, 2024, Willis gave a speech at an Atlanta church that all but accused Trump’s and the other defendants’ lawyers of racism – stating they would play the “race card” – and, in so doing, showed an alarming lack of judgment.[1] Although not mentioning the defense attorneys by name, it was clear who Willis was targeting, and her comments, which could taint the jury pool, were inappropriate and unethical.  It should come as no surprise that Judge McAfee suggested that a gag order may ultimately be necessary to ensure that such conduct does not occur again.[2]

Second, Willis and Wade likely provided untruthful testimony on the witness stand when they stated that their romantic relationship began in 2022. To begin with, Willis’s former friend Robyn Yeartie testified under oath that the relationship began in 2019, which was before Willis hired Wade as a special prosecutor. Additionally, Wade’s former attorney and law partner, Terrence Bradley, exchanged text messages in January 2024 with Ashleigh Merchant, one of the defendants’ attorneys, in which he responded “absolutely,” when Merchant asked him whether the relationship began before 2022 (and offered specific details regarding when it began).[3] It is incomprehensible why Bradley, who previously represented Wade in a divorce proceeding, would communicate with an attorney seeking Willis’s dismissal from the case. And it was equally troubling that, when testifying, Bradley evaded nearly every question, suddenly claiming that he did not recall when the relationship began. Bradley’s text messages, not his dishonest testimony, tell the story.[4]

Also, Wade’s testimony was inconsistent with the answers he provided to interrogatories in his prior divorce proceeding. As Judge McAfee stated, Wade’s “patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”[5] Well, if Wade’s explanation that the relationship began in 2022 was “patently unpersuasive,” then Willis’s testimony was too. As they say, what is good for the goose is also good for the gander.

Lest there be any doubt, the defendants provided evidence that, before 2022, Willis and Wade had exchanged thousands of text messages and that Wade was located near Willis’s residence approximately thirty-five times.[6] What’s more, after the hearing, two additional witnesses came forward with information that the relationship began before 2022, but Judge McAfee declined to hear their testimony.[7]

Third, Willis’s claim that she reimbursed Wade in cash for money that he expended on their numerous vacations – while Willis employed and supervised Wade – strains credulity. Indeed, Willis’s explanation for the reimbursements is quite convenient because it ensures that they cannot be traced. And it is odd that a district attorney, who, as a public servant, arguably has an obligation to disclose such reimbursements, would select a method for which no documentation would exist. One would think that, in the interest of disclosure and transparency, Willis would do the opposite.

Judge McAfee summarized Willis and Wade’s questionable conduct as follows:

Even if the romantic relationship began after … Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the District Attorney benefited - albeit non-materially - from a contract whose award lay solely within her purview and policing.[8]

Judge McAfee almost certainly did not believe Willis and Wade, stating in his opinion that “the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County may offer feedback on any unanswered questions that linger.”[9] That should tell you all you need to know.

Given his findings, how could Judge McAfee conclude that the defense had failed to establish by a preponderance of the evidence that the relationship began before 2022, that Willis was not truthful on the stand, and that Willis should not be disqualified? No one can know the answer to this question, but a few explanations appear likely. Judge McAfee may have been afraid to disqualify Willis because of the far-reaching implications of such a decision. Doing so would have made it highly likely that Trump would not be prosecuted, and that McAfee would face a significant backlash from Fulton County’s legal community and voters. Additionally, considering that Judge McAfee is a new judge in an overwhelmingly liberal county, and married with two children, he may have feared that disqualifying Willis would have threatened his career and safety.

Alternatively, Judge McAfee may have honestly believed that he was reaching the right result because, despite Willis’s and Wade’s unethical conduct, no actual conflict of interest existed. But if the relationship began in 2019 or 2020, which the evidence overwhelmingly suggests, Willis had an actual conflict of interest when she hired Wade, when she chose Wade the lead the prosecution against Trump and the other defendants, when she continued to employ and supervise him, and when she paid him hundreds of thousands of dollars for his services. And Willis’s lack of candor on the stand is itself a conflict of interest because her and Wade’s personal interest in concealing the relationship conflicted with their duty to testify truthfully and disclose that relationship. Under these circumstances, disqualification should be the remedy for precisely the type of egregious and unethical conduct that Judge McAfee cited in his decision.

Whatever the reason, Judge McAfee showed himself to be a careful, thoughtful, and conscientious judge, and his findings regarding Willis’s and Wade’s unethical conduct will surely impact Willis’s ability to remain as the prosecutor going forward.

2.    The prosecution against former President Donald Trump is irreparably tainted.

In his opinion, Judge McAfee criticized Willis for her “tremendous lapse of judgment” and the “unprofessional manner of [Willis’s] testimony,” and concluded that the hearing had an “odor of mendacity” that created the appearance of impropriety.[10] Indeed, Willis’s speech at the church, her previously undisclosed relationship (and vacations) with Wade, her questionable theory of cash-only (and thus untraceable) reimbursements, and her combative testimony under oath, compromised irreparably her credibility and stained the prosecution with an unremovable taint.

For these and other reasons, Willis’s continued involvement in the prosecution will likely undermine the public’s faith in the legal system and the rule of law. As Judge McAfee stated:

As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed. Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences … The testimony introduced, including that of the District Attorney and Wade, did not put these concerns to rest.[11]

It is deeply troubling that a district attorney, particularly one involved in the very public prosecution of a former president, would behave in this manner, rather than ensure that her conduct was beyond reproach.

In essence, Trump won this hearing even though he did not technically “win.”

3.    The weaponization of the law against Trump threatens to undermine the public’s faith in the rule of law.

If one honestly analyzes the cases and court decisions against Trump, one theme emerges: they are, at least to a degree, politically motivated and reflect personal animus against Trump.

For example, New York Attorney General Letitia James campaigned on the promise that she would target and prosecute Trump. And James brought a lawsuit against Trump under a rarely used statute – and before a decidedly liberal judge – that resulted in an arguably excessive $350 million dollar judgment against Trump.[12] We now live in a country where a prosecutor can openly campaign on and get elected to a position on a pledge to prosecute a specific individual.[13]

Additionally, Willis has been anything but shy about her hatred for Trump. Furthermore, the indictment against Trump – filed in Fulton County, which is overwhelmingly liberal – all but ensures a jury pool consisting of jurors who dislike Trump, much like the jury in Manhattan that awarded E. Jean Carroll eighty-three million dollars in damages for defamation, despite her attorneys seeking only a fraction of that amount.[14]

Likewise, the prosecution against Trump in the District of Columbia, which relates to his conduct on January 6, 2021, will, like in Manhattan and Fulton County, place Trump in an overwhelmingly liberal jurisdiction before an overwhelmingly liberal jury. Moreover, the prosecutors in the pending cases are desperately seeking to begin the trials in advance of the November election. That, again, should tell you all you need to know. The motive for these prosecutions is political, namely, to ensure that Trump loses the election in November.[15]

Regarding recent court decisions, the Colorado Supreme Court’s decision, where four justices (all democrats) held, despite the unambiguous language in Section Five of the Fourteenth Amendment, and the ambiguous language in Section Three, that Trump was an “insurrectionist” and therefore barred from Colorado’s presidential primary ballot, was utterly ridiculous.[16] Not surprisingly, the United States Supreme Court unanimously reversed the Colorado Supreme Court’s decision.

Also, some scholars and media personalities continue to make histrionic and laughable statements that defeating Trump is necessary to save democracy. Former Fourth Circuit Court of Appeals Judge Michael Luttig, for example, consistently foments division and fear by making melodramatic statements, such as that the November election is a struggle for democracy and that democracy’s survival depends on defeating Trump.[17] Well, democracy is not threatened because voters elect someone that you do not like.

4.    Steve Sadow is among the best attorneys in the country. 

Steve Sadow, the lead attorney for Donald Trump, is incredibly talented and among the nation's top attorneys. If law students and young lawyers want to see an example of powerful advocacy, they should look no further than Sadow. Indeed, Sadow eviscerated Terrence Bradley with concise, impossible-to-evade questions that left no doubt that Bradley was being untruthful. And Sadow knows how to craft a question in which he subtly incorporates argument into the lead up to the question, and his forceful and confident tone makes it seem like any answer that a witness gives other than the one Sadow's question implicitly suggests is not credible. 

Additionally, Sadow's preparation is impeccable. His arguments are well-organized, to the point, and delivered with a confidence and authenticity that maximizes their persuasive impact. In short, it's not just what Sadow says, but how he says it, that is so impressive. 

 

***

When Wade resigned as the lead prosecutor, he wrote that he was doing so “in the interest of democracy.”[18] Wade did not resign “in the interest of democracy.” He resigned because he got caught. And when the defendants initially filed their motion to disqualify Willis, she called the allegations in the motion – while under oath -- a lie.[19]  Judge McAfee’s decision demonstrates that the allegations were anything but a lie.

The rule of law, not democracy, is at stake. If prosecutors continue to try to “get Trump,” it will erode public confidence in the rule of law and its leaders.[20] That, and an “odor of mendacity,” is the true threat to democracy.

 

[1] Timothy H.J. Nerozzi, Judge in Georgia Slams Fani Willis’ ‘Improper’ Church Speech, ‘Playing the Race Card,’ (March 15, 2024), available at: Judge in Georgia slams Fani Willis' 'improper' church speech, 'playing the race card' (fox5atlanta.com)

[2] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[3] Srah Fortinsky, Ex-divorce lawyer Key Texts on Willis-Wade Relationship Were Speculation (Feb. 27, 2024), available at: Ex-divorce lawyer: Key texts on Willis-Wade relationship were speculation | The Hill

[4] See id.

[5] State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[6] See Nick Wooten, Trump Attorney: Cell Phone Data Could Show that Fani Willis Nathan Wade Lied About Relationship Timeline Feb. 23, 2024), available at: Phone data calls into question Wade-Willis relationship timeline | 11alive.com

[7] See Jason Morris, et al., Georgia Judge Asked to Allow New Testimony from Witnesses Who Allegedly Have Information on Willis-Wade Relationship (March 5, 2024), available at: Georgia judge asked to allow new testimony from witnesses who allegedly have information on Willis-Wade relationship | CNN Politics

[8] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[9] Id.

[10] Id. (brackets added).

[11] Id.

[12] See Adam Reiss and Dareh Gregorian, Judge Fines Donald Trump More Than 350 Million, Bars Him from Running Businesses in N.Y. for Three Years (Feb. 16, 2024), available at: Judge Engoron fines Trump more than $350M, bars him from running businesses in N.Y. for 3 years (nbcnews.com)

[13] See Associated Press, NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (Sept. 28, 2023), available at: NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (usnews.com)

[14] See Lauren Del Valle, Jury Finds Trump Must Pay 83.3 Million to E. Jean Carroll (Jan. 26, 2024), available at: Trump must pay $83.3 million to E. Jean Carroll, jury says (cnn.com)

[15] The case against Trump in Florida, involving Trump’s alleged refusal to turn over classified documents, is arguably the most meritorious of those brought against Trump.

[16] See Trump v. Anderson, 2023 CO 63, available at: 23SA300.pdf (state.co.us)

[17]  See Shauneen Miranda, Former Pence Legal Aide: Trump’s Hold on the GOP Puts Democracy ‘In Grave Peril’  (Aug. 9, 2023), available at: Former Pence legal aide: Trump’s hold on GOP puts democracy “in grave peril” (axios.com)

[18] The Hill, Nathan Wade’s Resignation Letter (March 15, 2024), available at: READ: Nathan Wade’s resignation letter | The Hill

[19] See Kaitlyn Lewis, Fani Willis Says Lawyer ‘Lying’ During Disqualification Hearing (Feb. 15, 2024), available at:  Fani Willis Says Lawyer 'Lying' During Disqualification Hearing (newsweek.com)

[20]  See Alan Dershowitz, Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law (Hot Books, 2023).

https://lawprofessors.typepad.com/appellate_advocacy/2024/03/a-few-thoughts-on-judge-mcafees-decision.html

Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink

Comments

I seem to have missed the part about how this relates to appellate law issues.

Posted by: Keith Schmitt | Mar 22, 2024 4:01:28 AM

While Willis' conduct might be deserving of Bar discipline, her conduct had no connection whatsoever with Trump's illegal conduct in trying to steal the Georgia election--and to this date, no one has ever shown such a connection. As far as tainting a jury pool, what about all the commercials on TV by plaintiff PI lawyers blasting insurance companies in trying to drum up PI business--doesn't this taint jury pools too?

Posted by: Edward M. Kay | Mar 24, 2024 10:45:51 AM

I also agree with Keith Schmitt's comment--what does this have to do with making all of us better appellate lawyers?! Instead of putting your Trump comments here, put them on Truth Social were they belong!

Posted by: Edward M. Kay | Mar 24, 2024 10:48:50 AM

Post a comment