The Willis-Wade Miscarriage of Justice

Yesterday Judge Scott McAfee of the Superior Court of Fulton County, Georgia, ordered one of the pair of prosecutors Fani Willis and Nathan Wade to withdraw from the prosecution of Donald Trump for attempting to overturn the presidential election in Georgia. His reason: there was evidence that Willis and Wade had been having a love affair while Wade was working under Willis’ supervision on the prosecution, and that they had shared travel expenses.

Wade, the subordinate prosecuting attorney whom Willis had hired, wisely withdrew, rather than let the whole prosecution founder. This choice was inevitable, for Judge McAfee had ordered the entire Fulton County District Attorney’s Office to withdraw with Willis if she had chosen to withdraw.

To “laypeople,” i.e., non-lawyers, this may seem like rough justice. Judge McAfee himself found that there was no actual conflict of interest because the amount of proven disparity in shared expenses in Willis’ favor were at most a few thousand dollars, in comparison with Willis $200,000-plus salary. (In business and tax affairs, discrepancies less than 5% are generally held not to be “material.”)

Instead, the Judge ruled that there was the “appearance of impropriety.” Thus he implied, without ruling so explicitly, that lawyers on the same team, let alone in a high-profile case like this one, should not be sleeping together and sharing personal travel expenses, at least not without rigorously documenting their equal division. So one of the two alleged lovers had to go (along with the whole DA’s Office if Willis went), and Wade was the obvious choice.

But is this really “rough justice”? Whatever you call it, it reeks of “shopkeeper’s morality.” The decision has nothing to do with any kind of law that I know, and I practiced and taught law for 32 years. Stay with me, and hear me out.

First of all, consider the title of the case, on the very first page of Judge McAfee’s written decision: “State of Georgia v. Donald John Trump [and eight others].” Neither Willis nor Wade is a party to the case. Both were (and Willis still is) lawyers for the prosecution—one of the most serious and politically consequential prosecutions in American history. The chief defendant in the case is a former president of the United States. If convicted, he would be one of the most dastardly criminals in American history, a dis-elected president who tried to subvert our democracy to stay in power illegitimately.

How does he get standing to complain about two of his duly appointed prosecutors sleeping together and sharing travel expenses, even unequally? I submit that he has no such standing.

The law of “standing” is something so basic that apparently no one thought to argue it in this case. Expressed in non-legal terms, it’s simple common sense. No one can complain in a court of law about something that is none of his or her business. In order to complain, you have to have been wronged: you have to show that you have suffered “injury in fact.”

With regard to standing, Trump and his fellow defendants in this case get caught in what’s called a logical “fork.” If Willis and Wade allegedly sleeping together and sharing travel expenses unequally made their prosecution less effective, Trump and his co-defendants had and have nothing to complain of because they suffered no harm. Instead, they gained from the alleged wrongdoing.

If Willis and Wade sleeping together and sharing travel expenses made their prosecution more effective, those accused of high-level criminality cannot complain, unless what Willis and Wade did is against the law in such a way as to seriously prejudice the administration of justice. If defendants in criminal cases generally were able to complain of actions and incidents that make their prosecution more effective, our criminal justice system would fall apart. For this reason, defendants can complain only of clear instances of personal and adverse interest, for example, if a prosecutor revealed something like Trump’s own expressed desire for “vengeance” and “retribution” against people who he thinks have harmed him or those he professes to care about.

I know of no law that prohibits cooperating lawyers or public prosecutors from sleeping together and sharing travel expenses, equally or otherwise, and Judge McAfee cited none in his judicial opinion. Not only that. He made a specific and explicit finding of fact (page 7) that “the financial gain flowing from her relationship with Wade was not a motivating factor on the part of the District Attorney [Willis] to indict and prosecute this case.” On that basis and others, he specifically found, as a matter of fact, no cognizable conflict of interest.

Notwithstanding this finding, Judge McAfee reasoned that the possible implication that Willis might have profited personally and monetarily from her relationship and travel with Wade created the “appearance of impropriety” in the prosecution. He did so despite noting (in footnote 3) that both the American Bar Association’s Model Rules of Professional Conduct for attorneys (back in 1983, two generations ago) and the Georgia Rules of Professional Conduct (a generation ago) had dropped references to an “appearance of impropriety” because the term is “vague” and has “varying application.” In another footnote (number 4), he noted that the “appearance of impropriety” standard today applies to judges’ private behavior, but not to attorneys’ private behavior; yet somehow he confused private and professional behavior for prosecutors because “the distinction is less apparent here.”

This is badly muddled thinking. The result in this instance, the Willis-or-Wade withdrawal order, was pernicious nonsense. To the extent it sought to preserve the public reputation of the court and the prosecution, it appeared motivated more by nineteenth-century sexual prudery than rational cause and effect.

The court itself found that any inequality in sharing expenses was immaterial, motivationally irrelevant, and likely inadvertent. Yet the end result of its order was to cause an experienced prosecutor (Wade), whom the Judge himself found was underpaid (page 5), and who had worked on the case for over 2-1/4 years, to withdraw just as the case is preparing for trial.

This was and is a major blow to the prosecution. It’s an especially hard blow in light of the fact that Willis, before hiring Wade, had tried to attract other co-prosecutors, including a former governor of Georgia, without success.

The aura of sexual prudery that pervades this decision is not just anachronistic, but highly counterproductive. High-stakes litigation like this is among the most stressful, exhausting, and demandingly obsessive things that people do. It’s inevitable that people working together in such a crucible would form romantic relationships. (And these days it shouldn’t matter whether they are heterosexual or homosexual.)

I would argue that, unless those relationships go awry, they actually aid the cause. People in love are more apt to listen to each other and credit each other’s views and arguments calmly. Romantic partners are also likely to hone their arguments together informally, in “pillow talk,” off the clock. Isn’t it about time to consider the real, practical effect of natural human sexual relations, and to abandon the medieval notion that all such relations outside of marriage are somehow inherently evil?

And if the romantic relationships do go awry and hurt the cause of the prosecution, the last parties allowed to complain should be the criminal defendants, who actually gain from the harm to the prosecution. As Judge McAfee himself noted (bottom of page 8), any questions involving professional ethics that do not undermine the system of justice are proper grist for the “the General Assembly [of Georgia], the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County[.]” They are no business of those defending serious criminal charges.

So the end result of Judge McAfee’s decision, in my view, was substantially to impair the prosecution of Trump and his co-defendants, based on a claim that is really none of his or their business. The good Judge allowed Trump’s standard modus operandi to succeed spectacularly in this case: defending serious criminal charges by delaying and throwing dirt not only on his opponents, but now on his opposing attorneys as well.

The proper disposition of any such future claims is to throw them out summarily unless the claimant can show, in a closed hearing, why practical cause and effect creates “injury in fact” to the complaining defendants, or to the general system of justice, and therefore standing to complain. It’s long past time for judges to stop giving those charged with serious crimes advantages in court based solely on the perceived abstract, personal moral shortcomings of those who prosecute them, with no demonstrated adverse effect on our system of justice.


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