By
Judge Scott McAfee has ruled in Georgia that Fulton County District Attorney Fani Willis and her office can continue prosecuting Donald Trump and his co-defendants, but only if special prosecutor Nathan Wade steps down.
In his ruling Friday, McAfee wrote that the defense had failed to meet its burden proving that Willis "acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor."
But the judge went on to write that the record in the case highlighted "a significant appearance of impropriety that infects the current structure of the prosecution team — an appearance that must be removed through the State’s selection of one of two options."
Those options are for Willis, along with her whole office, to step aside, which would mean the case would be reassigned by a state panel to another office or prosecutor; or for Wade to withdraw, which McAfee wrote would allow "the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case."
Defendants in the election-related racketeering case against Trump and others argued that Willis and her office should be disqualified from the case, alleging a conflict of interest or at least the appearance of one. They argued that Willis improperly profited from the hiring of Wade, with whom she had a romantic relationship, and that it gives the elected district attorney an impermissible stake in the prosecution.
Days of publicly broadcast hearings on the matter featured dramatic and salacious testimony, with the parties disagreeing about, among other things, when the relationship between Willis and Wade began and the extent to which she reimbursed him for trips they took.
Importantly, the judge wrote that the evidence in the case "demonstrated that the financial gain flowing from her relationship with Wade was not a motivating factor on the part of the District Attorney to indict and prosecute this case."
To be sure, McAfee wasn't complimentary of Willis. Though there wasn't an actual conflict, he wrote that his ruling
is by no means an indication that the Court condones this tremendous lapse in judgment or the unprofessional manner of the District Attorney’s testimony during the evidentiary hearing. Rather, it is the undersigned’s opinion that Georgia law does not permit the finding of an actual conflict for simply making bad choices — even repeatedly — and it is the trial court’s duty to confine itself to the relevant issues and applicable law properly brought before it.
The judge went on to write that an "an odor of mendacity remains" and that "reasonable questions about whether the District Attorney and her hand-selected lead SADA testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it."
The judge also criticized a speech Willis gave whose effect, McAfee wrote, “was to cast racial aspersions at an indicted Defendant’s decision to file this pretrial motion.” However, he concluded that the speech didn’t cross the line to the point of denying a fair trial or requiring her disqualification.
The allegations did nothing to change the facts of the election subversion charges against Trump and his co-defendants but imperiled the prosecution nonetheless, because disqualifying Willis’ office would mean that a Georgia state prosecutors’ council would have to appoint a new office or prosecutor to handle the case. And that process would at least add further delay.
Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.