Editor’s Note: William Cooper is the author of “How America Works … And Why It Doesn’t.”He is a California-based litigator who works on civil and criminal cases. Follow him on Substack@williamowencooper.The opinions expressed in this commentary are his own.Read moreopinionat CNN.
CNN —
While presiding overtheinvestigation andprosecutionof former President Donald Trump and 18 of his allies for attempting to reverse Georgia’s 2020 presidential election results, Fulton County, Georgia, District AttorneyFani Willishas made two severe lapses in judgment—two too many.
William Cooper
InJune 2022, she helda fundraiserfor the political opponent of Republican Georgia state Sen. Burt Jones, one of the Trump allies targeted in her investigation. Willis hadannouncedthe investigation over a year earlier in February 2021.
“The optics are horrific,” Fulton County Judge Robert McBurneysaidabout the fundraiserbefore disqualifyingWillis and her staff from pursuing charges against Jones in July 2022. (Whilea separate prosecutor may investigate Jones, who has denied any wrongdoing,no onehas yet been selected.)
More recently, Willisadmittedto having a “personal relationship” withNathan Wade, a special prosecutor she hired to help with Trump’s prosecution. Her admission came in response to Trump co-defendant Michael Roman’scourt filingclaiming Willis and Wade had a “clandestine” relationship, seeking to remove them from the case.
A hearing is being held Thursday on therequest to remove Willisfor allegedly engaging in an improper romantic relationship that amounted to a conflict of interest. The co-defendants in the case are also trying to get all charges dismissed.
As Wade recentlyexplainedin a sworn affidavit, he and Willis have vacationed together and shared the expenses of their travel: “At times I have made and purchased travel for District Attorney Willis and myself from my personal funds. At other times District Attorney Willis has made and purchased travel for she and I from her personal funds.”
As of last month, moreover, Wadehad billedFulton County over $650,000 for his work on Trump’s case over the past two years. Thus, in one of the biggest criminal cases in United States history — the prosecution of a leading presidential candidate in an election year — a lawyer having aromantic relationshipwith the lead prosecutor is getting paid large sums for his work.
The optics are, again, horrific.
But this case isn’t about Willis’ regrettable mistakes. It’s about Trump’s alleged campaign to fraudulently reverse Georgia’s presidential election results.(The former president hasdenied all wrongdoing.) The allegations against him are extremely serious. For example, on January 2, 2021, while still the sitting president, he pressured Georgia Secretary of State Brad Raffensperger to come up with more votes. “I just want to find 11,780 votes,” TrumptoldRaffensperger. “And the people of Georgia are angry, the people of the country are angry. And there’s nothing wrong with saying, you know, um, that you’ve recalculated.”
It’s essential that the Fulton County prosecution not descend into a diversionary circus where the focus is on the prosecuting team’s misjudgments instead of the defendants’ misdeeds. Willis and Wade should voluntarily recuse themselves and allow other prosecutors to run the case.
This is critical for three reasons. First, Willis and Wade’s continued presence would create huge distractions asthetrial approaches. The prosecutors should be focused on making their case in court, not managing rolling media frenzies surrounding extraneous matters.
Second, Willis and Wade stepping aside would limit the fallout over Wade’s invoices, something that should be getting more attention in this whole controversy. Wade hasn’t just billed Fulton County over $650,000 under Willis’ supervision; he’s done so in irregular fashion. For example, Wadebilled 24 hoursfor the case in a single day. Standing alone, Wade’s billing practices warrant scrutiny. Combined with his personal relationship with Willis, they raise significant questions, including whether any of his outsized earnings have benefited Willis.
The current evidence in the public domain does not establish that either Willis or Wade committed any crimes or violated their ethical obligations as licensed attorneys. And both lawyers vehementlydeny any improprieties. As Wadesaidin his affidavit, “The District Attorney received no funds or personal financial gain from my position as Special Prosecutor.” But if Wade didinflate his billsor if Willis did benefit from any of Wade’s earnings, those activities would beunethicalif not unlawful. And they could lead to disqualification by the judge.
“The state has admitted a relationship existed,”presiding Judge Scott McAfeesaidat a hearing on Monday. “So what remains to be proven is the existence and extent of any financial benefit, again if there even was one. Because I think it’s possible that the facts alleged by the defendant could result in disqualification.” He said the evidentiary hearing on Thursday would “establish the record on those core allegations.”
Moreover, even the prospect of this improprietycould allow Trump to assert adefense (in court and in the public square) that the cases against him are part of a pattern of prosecution that amounts to awitch huntundertaken by a corrupt system.
Finally, and most importantly, Willis and Wade should recuse themselves because these controversies and even the appearance of corruption simply cannot be allowed to reach the jury and infect the trial. This could happen if the judge allows Trump’s attorneys to raise them in court. Or it could happen if the related media coverage reaches jurors outside the courthouse. If even one juror thinks Willis was motivated to prosecute Trump to enrich a romantic partner instead of to do justice, it could switch the verdict from guilty to not guilty. Jury trials often turn on far less.
Fortunately, however, this can still be avoided. If Willis and Wade recuse themselves promptly, this controversy is unlikely to taint the trial. Their continued presence on the case is what drives these concerns. And while the defendants raised the controversy with the court, it’s actually theprosecution’s effort that’s harmed by it.
If Willis and Wade step aside, other competent lawyers can make the case that Trump violated the law. A full and robust presentation of evidence could still be presented at trial.And because the Fulton County prosecutorial team is large, includingtwo other special prosecutors already on the case, the recusals wouldn’t likely cause the trial to be delayed until after the election.
This saga is thus a huge problem with a simple and effective solution.
