Lawyers for a Donald Trump co-defendant in the Georgia election racketeering case made a slew of false and unsupported claims in their motion to have the charges dismissed, and to have Fulton County District Attorney Fani Willis disqualified from prosecuting it.
The claims are false. What is true is that Willis and Nathan Wade, the special prosecutor she appointed to help lead the case, have admitted to a personal relationship.
Their relationship was not illegal, unlike conspiring to overthrow a presidential election. Nor does the relationship alone represent a conflict of interest. But Trump’s co-defendant Michael Roman claims to have evidence of such a conflict, and the interest of justice demands an opportunity for him to present his case.
For this reason alone, Willis and Wade’s relationship represents poor judgment. It’s an unfortunate distraction from one of the most consequential criminal prosecutions in American history. Even under the best of circumstances, personal relationships can complicate professional behavior.
And these are hardly the best of circumstances.
‘Pound on the table and yell’
Legally, Team Trump has to meet a high bar to prove a conflict of interest that would disqualify Willis. Even if they do meet that challenge, the racketeering case against them won’t simply disappear. But Trump and his cohorts have never seemed very interested in arguing the finer points of law. Their goal is to insulate, obfuscate, and above all, delay.
The longer Trump can continue fomenting manufactured outrage against his adversaries, the better it bodes for his presidential campaign.
To paraphrase an old lawyers’ joke: When the facts are against you, argue the law. When the law is against you, argue the facts. When the facts and the law are against you, pound on the table and yell about the prosecutors’ personal life.
Under Georgia law, the mere possibility of a conflict of interest is not grounds for disqualifying a prosecutor. But a conflict actually exists, it must have a bearing on the outcome of the case. As Willis noted in her response to the motion, Georgia courts have determined a prosecutor can be disqualified if he or she:
- Previously represented the defendant with respect to the offense charged.
- Is a fact witness in the case.
- Had a close personal relationship with the victim of the offense.
- Derives a personal benefit from the outcome of the case.
“Defendants offer no support for their insistence that the exercise of any prosecutorial discretion (i.e., any charging decision or plea recommendation) in this case was impacted by any personal relationship,” Willis responded, pointing out that “that there are at least two personal relationships among the collection of defense attorneys representing the Defendants that, under the standard urged by the motion, would almost certainly require disqualification.”
The defendants’ motion, as Willis notes, relies heavily on “supposition and innuendo,” and unless clear evidence is presented in court to that effect, it will almost certainly fail. Plus, the motion not only contains outright falsehoods, it presents evidence that directly contracts the defendants’ claims. For instance, the motion falsely claims Willis paid Wade by misappropriating funds intended to clear a case backlog, but includes invoices proving his fee came from other funds. The motion also claims Wade does not meet Fulton County’s requirements to serve as a special prosecutor, but cites as evidence the county’s requirements for contract criminal defense attorneys.
And even if those allegations were true, they wouldn’t constitute grounds for disqualification.
As a legal document, the motion is a spectacular mess. But as a political document, the motion has furthered Trump’s goal of demonizing his adversaries and portraying himself as a victim. Willis is correct that “It is distasteful that such allegations require a response,” But she and Wade have contributed to that bad taste with an unfortunate lapse in judgment.
Marc H. Morial is president and CEO of the National Urban League. He was mayor of New Orleans from 1994 to 2002 and is a graduate of the University of Pennsylvania and the Georgetown University Law Center.
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