Fulton County Superior Court Judge Scott McAfee heard closing arguments on March 1 on the motion to disqualify Fulton County District Attorney Fani Willis from prosecuting the high-profile racketeering case against former President Donald Trump and 14 others.
Each side was given an hour and a half for arguments, after which the judge said he hoped to file an order “within the next two weeks.”
“There are several legal issues to sort through, several factual determinations I have to make, and those aren’t ones I can make at this moment,” Judge McAfee said.
Which Standard to Use
A key legal issue is what standard Judge McAfee will need to adhere to in order to determine whether the prosecutor’s behavior warrants disqualification.Defense attorneys say the appearance of impropriety is enough, while prosecutors say evidence of a conflict of interest is required. Both sides found little case law that applied exactly to the situation.
Steve Sadow, an attorney representing President Trump, cited cases where a judge used the appearance of impropriety as the standard to disqualify attorneys.
“Prosecutors are held to a higher standard, they are the ones seeking justice,” Mr. Sadow added.
John Merchant, representing co-defendant Michael Roman, said Georgia law says that an appearance of personal interest is enough to disqualify, but “personal interest” is not defined in state law.
“It could be a personal financial interest, it could be a personal interest related to bias, which sort of falls into the forensic misconduct box. But we have here a very personal financial interest laid out in terms of money received by Ms. Willis as a result of the scheme she set up,” Mr. Merchant said.
Adam Abbate, chief deputy attorney general for the Fulton County District Attorney’s office, argued that the appearance of impropriety was the standard to disqualify judges, and that disqualifying prosecutors requires clear evidence of a conflict of interest in a way that is tied to the “outcome” of the case.
The state cited an appellate court decision that ruled a prosecutor could not be disqualified for “appearance of impropriety alone.”
However, one of the cases cited dealt with a complaint made based on speculation.
“Aren’t we past the speculation and conjecture aspect of this though? The original and the core of the financial allegation is that there is a relationship and that money changed hands,” Judge McAfee said.
“There’s maybe still an open question of where the ledger stands. I think it was conceded that that balance could run one way, in the district attorney’s favor. Is that contested?” he asked.
Mr. Abbate argued that money changed hands but that there was no evidence of financial benefit and claimed the hearings were done in a way to “harass and embarrass the district attorney” and to “impugn her in front of the court.”
Harry MacDougald, representing Jeffrey Clark, argued there were six conflicts of interest at issue: financial, personal and political ambition, pattern of deceit of concealment of the relationship and money, the church speech, a motion for protective order the district attorney filed in special prosecutor Nathan Wade’s divorce case, and the way the state conducted the defense of the motion to disqualify.
Mr. MacDougald accused Ms. Willis of violating ethical guidelines in threatening Mr. Wade’s wife with prosecution in a civil case to benefit a criminal case.
Ms. Wade had sought to depose Ms. Willis regarding Mr. Wade’s finances. In a motion to quash that subpoena, Ms. Willis had proposed an investigation into Ms. Wade for alleged interference in the racketeering case.
Church Speech
Mr. Abbate also argued that Ms. Willis had not been referring to defendants in the racketeering case in a speech she made at an Atlanta church.On Jan. 14, Ms. Willis gave a speech at the Big Bethel AME Church, publicly addressing for the first time the allegations that she had an “improper” relationship with Mr. Wade. This was less than a week after the motion to disqualify was filed, and weeks before she would respond via court filing.
In the speech, Ms. Willis invoked God when she referenced her work and also asked why “Commissioner Bridget Thorne and so many others” had attacked only “the black man,” referring to Mr. Wade.
Mr. Sadow had filed a motion arguing Ms. Willis was prejudicing the jury against the defense by claiming the defense was racist, and attorneys for defendant David Shafer had additionally argued that Ms. Willis had given several interviews that referred to defendants in a way that would prejudice jurors against them.
Mr. Abbate said that Ms. Willis had been referring to Ms. Thorne and Rep. Marjorie Taylor Greene (R-Ga.).
Mr. Sadow pushed back on the claim that Ms. Willis was not referring to defendants in the church speech.
“They’re not talking about Ms. Thorne or Marjorie Taylor Greene. They’re talking about us. And you know how everybody knows that? Because not a single story from the media reported anything other than Fani Willis accused the defense and the defendants of being racist,” Mr. Sadow said.
He had argued that the comments in the speech, which had been drafted on note cards Ms. Willis used during the speech, were an “ethical violation.”
The ethical guidelines “make it clear that you must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” he cited.
“Can you think of anything more that would heighten public condemnation of the defendants than alleging that defense counsel and their defendants were making their motion based on race and religion?
“That’s as bad as it gets in Fulton County, with all due respect,” he said.
