What Fani Willis ruling says about judge, road ahead for Fulton DA

Fulton County Superior Judge Scott McAfee allowed District Attorney Fani Willis to remain on the Georgia election interference case, but added a harsh assessment of her decision-making in the process. (Alex Slitz/AP)

Credit: AP photos

Credit: AP photos

Fulton County Superior Judge Scott McAfee allowed District Attorney Fani Willis to remain on the Georgia election interference case, but added a harsh assessment of her decision-making in the process. (Alex Slitz/AP)

Fulton Superior Court Judge Scott McAfee opted on Friday to keep District Attorney Fani Willis on her high-profile election interference case — but also took the veteran prosecutor to task for her decision-making.

McAfee ultimately rejected a push from defense attorneys who argued that Willis and her office should be disqualified due to her onetime romantic relationship with Nathan Wade, the lead prosecutor on the case against former President Donald Trump and his allies. While McAfee concluded that there was no actual conflict of interest, he did rule that Willis needed to dismiss Wade from the probe to address an appearance of impropriety — or that she’d need to step aside. Within hours, Wade had tendered his resignation.

While technically a victory for Willis, McAfee’s 23-page order read like anything but a win for his former boss when he was an assistant DA. He strongly criticized her judgment, said questions remain as to her veracity and concluded she repeatedly made bad choices.

Here are some of the key takeaways from his ruling:

A messy win for Willis

When McAfee was first appointed, some observers pondered whether the rookie judge might shy away from being critical of his onetime boss. (Willis once described McAfee, now 34, as one of her “baby attorneys,” and McAfee and his wife had each donated small amounts of money to Willis’ first campaign for DA, before he became a judge.) But in his ruling McAfee wasn’t shy about calling Willis out where he felt like she exercised bad judgement — even as he ultimately determined her behavior didn’t cross the red line worthy of disqualification.

McAfee said Willis testified in an “unprofessional manner” during an evidentiary hearing last month and said he had “reasonable questions” about her truthfulness on the witness stand. He called her reimbursement process with Wade’s gifts “unusual” and the lack of any documents to back it up “understandably concerning.” He said her Martin Luther King Jr. weekend speech at Big Bethel AME Church was “legally improper” and had the effect of “cast(ing) racial aspersions” at the defendants who had filed the disqualification motion.

Fani Willis, the prosecutor leading the election interference case against former President Donald Trump in Georgia, appears during a visit to Big Bethel AME Church in Atlanta on Jan. 14, 2024. (Lynsey Weatherspoon/The New York Times)

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Credit: NYT

Willis may have won out in McAfee’s ruling, but his harsh words raise questions about whether it will be a Pyrrhic victory for her.

The judge indicated that he may rein in what Willis is able to say about the case moving forward — if a defendant seeks a gag order against the DA. That came in response to criticism about Willis’ comments about the case in the media, particularly in a recent book, and at Big Bethel. “The time may well have arrived for an order preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial publicity,” he wrote, “but that is not the motion presently before the Court.”

Amy Lee Copeland, a Savannah-based defense attorney and former federal prosecutor, believes that while the order could haunt Willis politically, it likely won’t impact the underlying case.

“The case isn’t really about the DA, it’s about the evidence against these defendants,” she said. “They have always touted the strength of this evidence.”

McAfee shows his mettle

McAfee’s even-keeled demeanor and probing questions at hearings have belied his relative inexperience as a jurist — having taken the bench only a little more than a year ago. But his willingness to call out perceived misconduct should come as no surprise.

When Gov. Brian Kemp appointed McAfee to the bench, he was the state’s inspector general. In that position, he found the state Department of Revenue unlawfully held onto millions of dollars in seizures and a high-ranking agent misled his superiors about the use of the slush fund. He said the highest levels of leadership “disregarded any semblance for their professional responsibilities.” He also condemned the state Labor Department for improperly giving employees a daily free meal for more than a year, costing taxpayers more than $1.1 million, much of which was earmarked for unemployment benefits.

In his order on Willis, McAfee highlighted what is clearly one of his goals as he oversees the case: ensuring that the result, no matter what it is, is one that instills confidence in the process. “A reasonable observer unburdened by partisan blinders should believe the law was impartially applied, that those accused of crimes had a fair opportunity to present their defenses and that any verdict was based on our criminal justice system’s best efforts at ascertaining the truth,” he said.

McAfee explains key decisions

McAfee had been strongly criticized by Willis’ supporters for holding an evidentiary hearing last month. It included uncomfortable testimony about Willis’ and Wade’s romantic relationship and explosive allegations that the DA and her former lover did not tell the truth when they said their relationship began after, not before, Wade was appointed special prosecutor.

Supporters said a hearing was needed to flush out the facts.

“I don’t see how Judge McAfee could have made a decision on disqualification without holding the hearing,” former Gwinnett County DA Danny Porter said.

The allegations raised questions as to whether Willis had financially benefited from the Trump prosecution. Records showed that Wade had billed the county for more than $728,000 in legal fees and had spent more than $15,000 on vacation trips he took with the DA.

Fulton County special prosecutor Nathan Wade testifies during a hearing in the case of the State of Georgia v. Donald John Trump at the Fulton County Courthouse on Thursday, Feb. 15, 2024 in Atlanta. (Alyssa Pointer/Pool/Getty Images/TNS)

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In his order, McAfee defended his decision to hold the hearing. “The defense motions and the state’s response created a conflict in the evidence that could only be resolved through an evidentiary hearing,” he wrote. Ignoring it could lead to “endangering a criminally accused’s constitutional right to procedural due process.”

And it was only during the hearing where both Willis and Wade testified that Willis repaid Wade in cash, testimony that McAfee called “understandably concerning” because of the lack of documentation to back it up. Yet he said it was not contradicted and “was not so incredible as to be inherently unbelievable.”

In his ruling, McAfee, a former state and federal prosecutor, also detailed his view of how prosecutors should act. They must “be held to a unique and exacting professional standard in light of their public responsibility – and their power,” he wrote. Moreover, McAfee added, “prosecutors are expected to assume a role beyond a mere advocate for one side and must make decisions in the public’s interest – not their own personal interest.”

He also explained his contentious decision to essentially split the baby and let Willis and her office stay on the case if Wade leaves. Because of the appearance of impropriety, McAfee said, changes had to be made.

“(A)n outsider could reasonably think that the district attorney is not exercising her independent professional judgment totally free of any compromising influences,” he wrote. “As long as Wade remains on the case, this unnecessary perception will persist.”

Defense attorney Ashleigh Merchant testifies before the Senate Special Committee on Investigation at the Georgia State Capitol on Wednesday, March 6, 2024. (Steve Schaefer/steve.schaefer@ajc.com)

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Credit: Steve Schaefer/AJC

Willis’ troubles won’t end with Judge McAfee

Indeed, the battlefront is opening up for Willis.

On Monday, lawyers for Trump and seven co-defendants asked McAfee for permission to appeal his order to the state Court of Appeals. If McAfee allows them to do it, the appellate court will have to decide whether to hear the matter. If it declines to do so, lawyers for Trump and his allies could then ask the state Supreme Court to hear the appeal. If they are unsuccessful, the case returns to McAfee.

Should one of the two appellate courts agree to take up the defense’s appeal, it would approach the issues in a more limited capacity, focusing on whether McAfee made reasonable legal determinations. It would do so relying on the testimony and evidence submitted before McAfee during last month’s evidentiary hearing.

McAfee in his order indicated that other sources of authority, including the Legislature, State Ethics Commission, the State Bar of Georgia and Fulton Board of Commissioners, “may offer feedback on any unanswered questions that linger.”

Critics have indicated they plan on following through with that oversight:

  • The GOP-controlled state Senate recently created a new investigative committee tasked with determining whether Willis and Wade misspent any state funding during vacations they took. The panel recently held its first hearing and has indicated it may subpoena the DA, Wade and their cell records
  • Republican Gov. Brian Kemp recently signed a revamp of a newly-created state prosecutor oversight panel designed to punish “rogue” DAs. The first complaint it received last year was about Willis
  • Several conservatives have filed bar complaints against the prosecutors
  • Two candidates have signed up to challenge Willis at the ballot box this year, one on her political left and one on her right. Trump and other GOP critics have also indicated they plan to continue making hay about the allegations on the campaign trail

The issues brought up by the defendants could also loom during jury selection, given the wide level of publicity the removal fight has received in the media.