Fulton County District Attorney Fani Willis has weighed in again on what standard should be used by a judge to determine whether to remove her from Donald Trump’s election interference case in Georgia.
As I explained after the hearing on Friday, the legal standard that applies to the disqualification effort could be crucial to the decision, so it’s no surprise that Willis filed a follow-up brief on the subject ahead of Judge Scott McAfee’s ruling expected by March 15.
In the brief filed Tuesday, she reiterated that there needs to be an actual conflict of interest rather than the appearance of one, as the defense argues.
“Every Georgia case that has addressed the issue has reached the same conclusion: in order to authorize a trial court to disqualify an elected district attorney, an actual conflict of interest must be proven,” the state wrote, adding, “No prosecutor in this state has ever been disqualified on the appearance of a conflict.”
McAfee’s questions to lawyers for both sides at Friday’s hearing suggested the judge found the standard less clear than the prosecution put it. But if Willis is correct, then that should make McAfee’s decision easier in her favor. The judge would have more leeway in the defense’s favor under an appearance standard. At any rate, Willis’ office probably hopes the brief helps strengthen its position after the state’s lawyer at Friday’s arguments seemed to struggle with some of McAfee’s inquiries.
He must assess witness credibility, including, somewhat awkwardly, the credibility of Willis herself. And while the standard is important, the question is ultimately what conclusion McAfee reaches under it. That’s where his role as the fact-finder comes in. He must assess witness credibility, including, somewhat awkwardly, the credibility of Willis herself. She and special prosecutor Nathan Wade both said their romantic relationship, which they said has since stopped, didn’t start until after he was hired on the Trump matter. The defense argues Willis gained an improper stake in the case by hiring Wade. McAfee needs to judge their testimony against defense evidence that, if believed, contradicts or at least casts doubt on their description of events. With both factual and legal issues to resolve, McAfee has a tough task ahead of him. The ongoing briefing shows that even what standard the judge will use to decide the epic issue is still in play. 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.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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