As Trump moves to disqualify Fulton DA, could earlier misstep be a guide?

Ruling barring Fani Willis from investigating Burt Jones back in spotlight
An advertisement for a runoff fundraiser featuring Fulton County District Attorney Fani Willis and lieutenant governor candidate Charlie Bailey is seen on monitors at the Fulton County Superior Court on Thursday, July 21, 2022. (Arvin Temkar / arvin.temkar@ajc.com)

Credit: arvin.temkar@ajc.com

Credit: arvin.temkar@ajc.com

An advertisement for a runoff fundraiser featuring Fulton County District Attorney Fani Willis and lieutenant governor candidate Charlie Bailey is seen on monitors at the Fulton County Superior Court on Thursday, July 21, 2022. (Arvin Temkar / arvin.temkar@ajc.com)

As a Fulton County judge considers whether District Attorney Fani Willis and her office should be disqualified from prosecuting Donald Trump, Willis’ defenders and critics alike have turned to a July 2022 ruling some believe could serve as a legal precedent.

The decision, authored by Fulton Superior Court Judge Robert McBurney, relates to the DA’s only other major unforced error in the case: holding a fundraiser for a Democratic opponent of one of her onetime investigation “targets.”

McBurney’s ruling, which disqualified Willis and her office from investigating now-Lt. Gov. Burt Jones due to a political conflict of interest, is currently being met with fresh scrutiny as observers look ahead to February 15. That’s when McBurney’s colleague, Judge Scott McAfee, will hear evidence about whether to remove Willis and her colleagues from the blockbuster election interference probe involving Trump and 14 others due to an alleged undisclosed romantic relationship with the case’s top prosecutor.

Trump and at least two other defendants are alleging that Willis is not only conflicted, but that McAfee should drop the felony charges that a grand jury handed up against them in August.

In a Friday court filing, attorneys for defendant Bob Cheeley cited the McBurney decision as the basis for why Willis should be removed from the case, saying if the “appearance of political conflict” ended in her recusal in the Jones matter, “a financial benefit conferred directly to the District Attorney certainly ” should do the same.

“The fact that the District Attorney has engaged in multiple, ongoing conflicts of a political and financial nature evidences a disregard of her oath to impartially and fairly exercise the enormous power vested in her office,” Cheeley attorneys Christopher Anulewicz and Richard Rice argued.

McBurney’s ruling has also caught the eye of some Willis supporters, who look back at the decision as erroneous. They say the judge set an unfairly high standard for the DA as he sought to protect the work of the special grand jury, which collected evidence, heard testimony and helped advise Willis for nearly eight months in 2022.

“I think it was an overreaction on (McBurney’s) part,” said Buddy Darden, a former Democratic congressman and Cobb County DA. “The facts, in my opinion, did not justify a disqualification. And I’ve never seen a bar set that high in the state of Georgia on any other case.”

District Attorney Fani Willis, center, confers with lead prosecutors Donald Wakeford, left, and Nathan Wade during a motion hearing at Fulton County Courthouse in Atlanta on July 1, 2022. (Hyosub Shin/The Atlanta Journal-Constitution/TNS)

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Credit: TNS

The attention comes three weeks after defendant Michael Roman made the bombshell allegation that Willis hired Nathan Wade as a special prosecutor in the case after they were already in a romantic relationship, one she didn’t disclose. Roman also accused Willis of financially benefiting from the case because Wade had purchased her tickets for trips together to Napa Valley and the Caribbean using money he had earned for his work.

‘Political nerves’

Willis was interested in Jones because of his role as a presidential elector for Trump, even though multiple vote counts had shown Democrat Joe Biden had won the state. Jones, at the time a state senator, and the 15 other GOP electors received letters from prosecutors in mid-2022 informing them they were investigation “targets” and could see criminal charges.

Jones soon moved to disqualify Willis, arguing she had a conflict of interest because she had hosted a fundraiser and donated to the campaign of Charlie Bailey, one of the Democrats vying to be Jones’ opponent in that year’s lieutenant governor’s race. At the time of the event, Bailey, one of Willis’ former employees, was locked in a two-person primary runoff, while Jones had already been named the GOP nominee.

The DA’s office had argued that Willis’ support for Bailey had “nothing to do with his opponent” and that Jones had been treated no differently than the other GOP electors who had also received target letters. (At the time of the fundraiser, Jones had not yet been sent a target letter but the special grand jury’s work was already underway.)

Judge Robert McBurney answers questions from defense attorney Donald F. Samuel during Claud “Tex” McIver’s retail as the court prepares for jury selection on Monday, Dec. 4, 2023.
Miguel Martinez /miguel.martinezjimenez@ajc.com

Credit: Miguel Martinez

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Credit: Miguel Martinez

After holding a hearing on the matter — during which McBurney called the fundraiser a “what are you thinking moment” for Willis — the judge blocked the DA and her office from further investigating Jones, even as he acknowledged that she was within her rights as a partisan elected official to sponsor a fundraiser.

“An investigation of this significance, garnering the public attention it necessarily does and touching so many political nerves in our society, cannot be burdened by legitimate doubts about the District Attorney’s motives,” McBurney wrote. “The District Attorney does not have to be apolitical, but her investigations do.”

The ruling was considered a surprise.

Legal experts who had been interviewed by The Atlanta Journal-Constitution and other media outlets ahead of time had predicted that Jones’ challenge was a long shot.

Lt. Gov. Burt Jones discusses the agenda for this year’s Legislative Session during a press conference in his office at the Georgia State Capitol on Wednesday, Jan. 24, 2024. (Natrice Miller/Natrice.miller@ajc.com)

Credit: Natrice Miller/AJC

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Credit: Natrice Miller/AJC

Finding a conflict

There are two main grounds for disqualifying a prosecutor from a case, according to the Prosecuting Attorney’s Council of Georgia: “forensic misconduct” or a conflict of interest.

In 2005, when the Georgia Supreme Court upheld the bribery conviction of former state Corrections Commissioner Bobby Whitworth, the state high court said a conflict exists when “the prosecutor has acquired a personal interest or stake in the defendant’s conviction.” Also, an “actual conflict” must be involved and be more than a “theoretical or speculative conflict.”

Georgia State University Law Prof. Anthony Michael Kreis views the McBurney ruling as “persuasive,” but “not binding or precedential in any way” for McAfee.

Kreis said what could matter is timing. A grand jury has already handed up criminal charges. The Jones ruling, meanwhile, came during the investigative phase.

“It’s entirely plausible to say that (Roman’s conflict-of-interest allegations are) much more egregious conduct than the fundraiser and if that was disqualifying, then this certainly has to be,” Kreis said. “But I think the thing that makes this different is the stage of the process that we’re at. It might be too late for them to raise it.”

Fulton County District Attorney Fani Willis speaks during a worship service at the Big Bethel AME Church, where she was invited to say The Message on Sunday, January 14, 2024. (Miguel Martinez /miguel.martinezjimenez@ajc.com)

Credit: Miguel Martinez/AJC

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Credit: Miguel Martinez/AJC

Norm Eisen, former President Barack Obama’s ethics czar who has defended Willis’ probe, called the Jones and Roman conflict-of-interest claims “apples and oranges”

“There, you did have an arguable conflict when the DA had been part of a fundraiser for one of the individuals who was likely to be Mr. Jones’ opponent,” he said, referring to Willis’ fundraiser for Bailey. Whereas Roman’s accusations involve “a private relationship between two consenting adults, where you have that overwhelming evidence here of basis for charges.”

If McAfee ultimately rules that Willis and her office should be removed from the Trump case, it would be up to the Prosecuting Attorneys’ Council of Georgia to decide what to do next, including whether to appoint one of its own attorneys or another DA’s office as a special prosecutor to take over.

That’s what happened to the Jones case. Eighteen months later, the council hasn’t announced its decision about the lieutenant governor.

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