OPINION: Case against Fani Willis offers far more drama than convincing evidence

The conflict-of-interest allegations against Fulton County District Attorney Fani Willis in the election-interference case against Donald Trump and 18 co-defendants have always been thin on evidence but never short on drama. Judge Scott McAfee has scheduled another hearing for Friday to determine if the messy affair has cast a dark enough cloud over the entire prosecution to warrant removing Willis and her entire office.

This attempt could very well work, depending on the standard for disqualification applied by Judge McAfee, who recently said, “I think it’s clear that disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one.”

But the Georgia Constitution and the equal application of legal principles should put cold water on the debate. The Fulton County District Attorney’s Office must be allowed to continue, barring a non-speculative, concrete conflict of interest.

Anthony Michael Kreis

Credit: contributed

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Credit: contributed

Like nearly every jurisdiction in the United States, district attorneys are elected in Georgia. Indeed, district attorneys in Georgia are constitutional officers who stand for election every four years. When prosecutors make mistakes short of prejudicing defendants, their constituents are the primary backstop for correcting course.

The Georgia Constitution is plain. In 2014, the Supreme Court of Georgia succinctly described the role of the district attorney: “The elected district attorney is not merely any prosecuting attorney. He is a constitutional officer, and there is only one such officer in each judicial circuit.” The state constitution imposes an unambiguous duty on district attorneys: “It shall be the duty of the district attorney to represent the state in all criminal cases in the superior court of such district attorney’s circuit.” The constitution, which vests a check on prosecutorial power in the people of Fulton County, imposes a reciprocal duty on Willis and her office to stand in for the state in all criminal cases.

Georgia law has long recognized that only a narrow set of conditions justifies disturbing the constitutional authority of a district attorney to bring criminal charges on behalf of the state and in the name of their constituents. Georgia’s highest court held in an 1892 case that “no law . . . authorizes any other person to act” in a district attorney’s place unless the constitutional officer is “absent or indisposed, or disqualified from interest or relationship.”

The statutory language, which instructs that district attorneys should be disqualified from cases in which they have an “interest or relationship,” has remained untouched since Georgia codified it in 1860. This verbiage reflects a strict historical standard for disqualification from English and early American common law. It means that Willis could only be disqualified if an actual conflict of interest violates the due process rights of criminal defendants.

Historically, under the common law, the conditions requiring the disqualification of a judge were exceedingly narrow. A judge would only be disqualified if they had a direct pecuniary interest in a case. The law recognized that a defendant’s due process rights would be violated, for example, if a judge’s compensation was contingent on a defendant’s conviction. Over time, as ethical standards and social conditions changed, American law began to recognize that judicial officers with an actual conflict should not preside over cases where the judge held a financial stake in the proceedings or had a close relationship with the parties. How we treat the public prosecutor to ensure fairness in Georgia statutory law today is deeply rooted in the common law rules for judges.

Today, the Supreme Court recognizes that to guarantee defendants have a fair trial before an impartial adjudicator, the Constitution requires an exacting ethical standard that mandates recusal when a judge’s neutrality can be reasonably questioned. While they must ensure the accused are not unfairly taken advantage of, prosecutors are not judges. Courts have acknowledged judges and jurors differ from the public prosecutor, who is necessarily a partisan.

A conflict of interest must mean, consistent with the text and history of the law, to be things like a prosecutor previously representing a defendant, the prosecutor witnessing the charged crime, a prosecutor having a close connection to a witness or a victim, or a prosecutor having a direct financial gain in either an impermissible selective prosecution or in the defendant’s ultimate conviction.

Had Trump and the Fulton County defendants produced evidence that Willis financially benefited from her romance with Nathan Wade by hiring him to assist in prosecuting the 2020 election interference case, that would have been an actual conflict of interest. And crucially, the unrebutted evidence indicates Willis and Wade’s relationship ended before the office made charging recommendations to the grand jury, and jurors handed down the indictments for election crimes in August 2023.

Should the Fulton DA’s Office be removed, the Prosecuting Attorneys’ Council of Georgia director will assign the case to another office or competent attorney who may not have the same political will, resources, or bandwidth to take on the case with the zealousness required to see justice done. And, perhaps even more frighteningly, district attorneys may balk at taking up the matter, knowing the threats of political violence lodged toward Willis and Fulton officials.

The case is far too important for democracy to risk without evidence that the office harmed the defendants’ rights or the office has unfairly targeted these defendants. While gossip and courtroom drama may dance close to creating an appearance of conflict or impropriety in some observers’ eyes, it is an insufficient basis to remove Willis and would violate the Georgia Constitution.

If her decision-making imperiled the legitimacy of her mission to vindicate democratic norms and protect American democracy, the courts should reserve that judgment where it belongs: the voters.

Anthony Michael Kreis is an assistant professor at Georgia State University College of Law.