Fulton County District Attorney Fani Willis testifies during a February hearing in Donald Trump's Georgia election case.Alyssa Pointer/Pool/AP
Much has already been written about Judge Scott McAfee’s ruling Friday allowing Fani Willis, the Fulton County district attorney, to continue overseeing the prosecution of Donald Trump and his co-defendants for allegedly conspiring to steal the 2020 election in Georgia. As my colleague Pema Levy explained, this was a momentous decision—one that means, at least for now, that the case with the most far-reaching criminal charges against the GOP presidential candidate and his allies will continue to move forward.
But another aspect of the ruling has gotten less attention: what it says about the conduct of prosecutors and about the state of the criminal justice system as a whole. And what it says isn’t good—especially for defendants who don’t have the same resources that Donald Trump does. As journalists Michael Isikoff and Daniel Klaidman note in their recently released book Find Me the Votes, Willis ran for office in 2020 as a tough-on-crime prosecutor. Like other DAs across the country, she has faced criticism from progressives and civil libertarians over her law-and-order approach in cases where the accused are far more disadvantaged than the former president. It’s hard to imagine that every criminal defendant in Georgia will enjoy the same opportunity Trump did to interrogate the actions of prosecutors.
Trump’s opportunity to confront the DA’s office was extensive, indeed. After days of hearings prying into the personal and professional lives of Willis and her colleagues, McAfee rejected the defendants’ argument that the DA’s romantic relationship with Nathan Wade—the outside attorney she’d hired to investigate and prosecute the case—amounted to an “actual conflict of interest” under which Willis had supposedly benefited financially. Even so, McAfee found that there was still a “significant appearance of impropriety” that could only be remedied if either Willis—and with her the entire Fulton DA’s office—or Wade, stepped aside. Wade promptly resigned, which means the case will proceed in Fulton County rather than entering a protracted legal limbo.
McAfee was scathing. He wrote that while the defense had failed to prove that Wade and Willis had been romantically involved before Wade’s hiring, “the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship.” McAfee opined that Wade’s “patently unpersuasive explanation” for inaccurate statements he had made in his own divorce case “indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.” All this could leave Georgians to “reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences” were Wade to continue on the prosecution team, the judge found.
“An odor of mendacity remains,” wrote McAfee, prompting “reasonable questions” about whether Willis and Wade “testified untruthfully about the timing of their relationship.”
McAfee’s order, the judge wrote, “is by no means an indication that the Court condones this tremendous lapse in judgment or the unprofessional manner” of Willis’ testimony during a hearing on the matter. Georgia law, he explained, simply did not “permit the finding of an actual conflict for simply making bad choices—even repeatedly.” The judge went on to say that televised remarks Willis had recently made about the case were “legally improper,” and he threatened to bar prosecutors from further discussing the case in public.
And while McAfee declined to throw out the case or disqualify Willis from prosecuting it, he suggested that there are other entities—”such as the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County”—that could hold the DA accountable.
On a moral level, Trump is obviously guilty of attempting to pull off a coup. His actions tore the nation apart and destroyed people’s lives. He may well be guilty legally, as well. But he is entitled to a fair trial and, with democracy on the line, it’s good that defense attorneys, judges, and other officials are closely scrutinizing the DA’s actions. Yet a lot of people less powerful than Trump are prosecuted in Fulton County, too. Rightly or wrongly, their liberty is in jeopardy, as well. And their cases won’t always receive that same scrutiny.
In pursuing Trump and his cronies, Willis has long maintained that she is treating the former president no differently than any other defendant. In their book, Isikoff and Klaidman recount how Willis persuaded the Fulton County sheriff to subject Trump to a mugshot after his indictment. “If you don’t mugshot him, you’re going to need to explain to our constituents why you mugshot their nephews and not the president of the United States,” she argued. “He needs to be treated like everybody else.”
That equal treatment works both ways. Trump and his well-heeled allies have an army of high-priced lawyers who can protect their rights in the face of prosecutors’ improper conduct. A lot of Willis’ other constituents don’t.
