Don’t fall for the trumped-up charges against Fani Willis

In the Trump era, Republicans have developed a dark but effective strategy to deflect from his staggering criminality. They appear willing to lodge any complaint or investigation, without an underlying good faith basis in law or fact, against any Democrat to create false equivalencies for Trump’s many felony charges.  The noise from their constant false allegations produces the desired effect of minimizing Trump’s crimes in the court of public opinion, leading exhausted voters to tune out and lump together all politicians facing legal charges.

And because of the mainstream media’s “performative neutrality,” as the Guardian’s Margaret Sullivan put it, the GOP’s obvious political stunts garner excessive coverage. It is all meant to equalize coverage of Trump’s traitorous conduct, which has no equal. 

The new motion to dismiss and disqualify Georgia’s Fulton County Prosecutor Fani Willis from the state’s 2020 election interference case is just more of the same noise from the right.

The allegations against Willis 

Earlier this month, one of Trump’s co-defendants in the Georgia election interference case, former director of Election Day operations Michael Roman, filed a 127-page motion to dismiss the indictment and disqualify Willis and her entire team from the case based on allegations that Willis had an “improper, clandestine personal relationship” with Nathan Wade, a private lawyer whom Willis retained to work on the election interference case.  

The motion alleges that Willis personally profited from Wade’s contract, under which Wade was paid $653,881 over several years, because Wade paid, or helped to pay, or shared the cost, for romantic trips he took with Willis. Roman alleges that “Willis and Wade have traveled personally together to such places as Napa Valley, California, Florida and the Caribbean… Wade has also purchased hotel rooms for personal trips with funds from the same account used to receive payments under his contract with Willis.”

These facts, Roman claims, show that Willis and Wade profited significantly from Trump’s prosecution “at the expense of the taxpayers.” 

The motion to disqualify is 127 pages of amped-up language amounting to nothing  

Wade’s personal use of “funds from the same account used to receive payments under his contract,” cited in the motion, just means he deposited his pay into his personal bank account, then spent his own money, like everyone. “Same account… contract” is only used here to sound suspicious.  

Also, if it isn’t obvious, government prosecutors and their outside counsel are always paid with taxpayer funds, so Willis and Wade “profiting” at “taxpayer expense” just means they got paid for their work. They can spend their income on vacations, lavish or otherwise; they can spend it on Skittles and kittens if they want.

Mainstream media’s heavy coverage of Republicans’ attempt to disqualify Willis will likely crescendo in a big, fat “so what?” A romantic affair isn’t a nefarious conflict of interest, nor is traveling together, nor is getting paid. It’s another attempt to distract the public from damning recorded evidence of a defeated Trump on the phone pressuring Georgia Secretary of State Brad Raffensperger to “find” 11,780 non-existent votes, a clear election felony. Indictment-adjacent, it gives Fox News a plausible substitution to avoid discussing the damning fusillade of evidence against Trump. 

Specific “disqualifying” allegations

On Monday, Roman’s attorney successfully petitioned a Georgia court to unseal Wade’s ongoing divorce proceedings, looking for embarrassing and salacious but legally irrelevant flair.

Roman has alleged, without evidence, that Fani Willis could have handled the Trump case within her office, but chose instead to hire “her boyfriend” as a private special prosecutor in order to benefit financially from his fees. Roman offers no analysis of staffing levels, caseload or professional expertise at the Fulton County prosecutor’s office to support his claim that outside counsel was unnecessary to prosecute one of the most consequential cases in U.S. history. And he offers only bootstrap arguments that the Willis-Wade personal relationship created a conflict of interest.

The gravamen of the disqualification attempt is that Willis hired Wade because they were involved romantically, and she wanted to benefit financially from his hourly compensation, which Roman claims is excessive. But according to a newly released book from veteran award-winning investigative journalists Michael Isikoff and Daniel Klaidman, “Find Me the Votes,” Willis tried to hire two other outside attorneys before she offered the work to Wade.  Willis first approached Roy Barnes, a former Georgia governor, to serve as senior counsel in the Trump prosecution, but Barnes declined, According to CBS News, Gabe Banks, a former federal prosecutor, was next, and also turned down Willis’ offer. Both men are reported to have been concerned about Trump supporters’ threats to their personal and family safety, with Barnes asking, “Hypothetically speaking, do you want a bodyguard following you around for the rest of your life?"

The fact that Willis only hired Wade after two other private attorneys turned her down wholly defeats Roman’s claim that she hired Wade in order to benefit financially from his contract. 

Regarding Wade’s hourly fee, Willis ultimately retained two additional outside attorneys to work on the election interference case. She paid all three outside attorneys the same hourly rate, but the motion to disqualify targets only Wade, and targets only his hourly rate.  Wade is black; the other two outside attorneys are white.    

A trumped-up claim that Wade was hired without county authority

Roman has moved for an order disqualifying Willis, “her office, and (Wade) from further prosecuting the instant matter on the grounds that (they) have been engaged in an improper, clandestine personal relationship during the pendency of this case…”

Roman argues that under Georgia law, Willis was required but failed to obtain Fulton County’s approval prior to appointing Mr. Wade as special prosecutor to work on the case, which means “the indictments he assisted in securing suffer from a structural and irreparable defect and must be dismissed.”  

Roman’s motion concedes that Georgia law authorizes a district attorney to retain additional prosecutors who are compensated from county funds, but claims the indictment must be dismissed because Willis did not have specific authority from Fulton County to contract with Wade.  Roman also concedes that the Fulton County prosecutor’s office had access to surplus funding to clear a COVID-era backlog and to hire additional counsel, but alleges that the use of that money in the election case was somehow illicit. “Covid backlog,” according to Roman’s argument, would not include Trump’s felony prosecution, even though Trump’s election interference in Georgia took place in Nov. 2020 and continued through 2021, during the heart of COVID. 

The extent to which Willis consulted with county officials prior to retaining Wade, and her office’s staffing protocols, if relevant at all, will be addressed when she files her response to the motion on February 2.

But where is the conflict of interest?

The motion devotes pages to Willis’ alleged attempt to “defraud the public” by personally benefiting “from an undisclosed conflict of interest” without identifying exactly where Willis’ conflict of interest lies. 

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Whitworth v. State, cited in the motion to disqualify, dealt with bribery, and a Georgia statute that prohibits state employees from receiving “anything of value” to which they are not entitled in return for procuring a specific outcome. The appellant in Whitworth tried but failed to show that the prosecutor who secured his conviction had “a personal interest or stake” in his conviction due to a pre-existing employment conflict, which is neither alleged nor relevant to Wade. Roman does not claim, because he cannot, that Wade and Willis were not entitled to their income, nor that getting paid for their work “influenced” any kind of outcome in the Trump election interference case.

Despite all the real estate Roman devotes in his brief to a presumed conflict of interest, he doesn’t identify any “personal stake” in his indictment.  Wanting to succeed on a case, like expecting to get paid, does not rise to an unethical ‘personal interest’ in a defendant’s conviction, or attorneys would be acting unethically every time they care about the outcome of a case or submit an invoice for their work.

Roman relies on Georgia Rules of Professional Conduct’s instruction that, “[a] lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests … will materially and adversely affect the representation of the client.” But neither Willis nor Wade had or have their own interests which conflict with their client’s interest.  The client here is Fulton County; the county’s interest is in securing a just conviction if that is where the facts and law lead. There is no “conflict” where attorneys and their client want the same outcome.

Having an affair and taking romantic trips together is not the same as when a judge, or a Supreme Court justice, receives millions of dollars in gifts from a litigant appearing before the court, then rules in favor of the gifting party in hidden quid pro quo. There is no allegation here that anyone accepted a bribe, or that either Willis or Wade are pursuing Trump’s conviction for financially illicit purposes, unless the desire to get paid for their work is somehow ‘illicit.’  Both Willis and Wade want to secure a conviction; there is no allegation that they received “gifts” to influence how they go about getting one.

Roman asserts, not incorrectly, that Wade has an incentive to continue working on Trump’s prosecution because that’s his source of income. But that is no different from any attorney who represents clients because they get paid (unless their client is Donald Trump, known to stiff his attorneys.) A “financial incentive” to prosecute Trump in this context sounds sinister, but it means nothing other than the expectation of receiving pay for work performed. 

The glaring double standard

A jury in New York recently found Donald Trump liable for sexual assault, which has the same legal meaning as rape, yet Republicans still consider him qualified to serve as President of the United States. Under MAGA ethos, a man can rape a woman, and brag about grabbing female genitalia without permission, and still occupy the highest office in the nation, but a woman in a consensual affair with outside counsel is disqualified from service as a county prosecutor.  Got it.