Two things can be true: The allegations that Fulton County District Attorney Fani Willis is involved in a romantic relationship with an attorney working in her office, and the strong legal case Willis has brought against former President Donald Trump and his RICO co-defendants in Georgia.
Michael Roman, one of 19 defendants charged in Georgia with conspiring to interfere with the 2020 presidential election, filed a motion Jan. 8 seeking to dismiss his case, alleging that Willis is involved in a romantic relationship with Nathan Wade, a private attorney she appointed to serve as a special counsel in the case. Roman alleges that Willis has personally benefited from the arrangement by taking vacations with Wade. Because the trips were paid for by Wade, Roman alleges, Willis herself is enjoying the fruits of public payments she authorized. This arrangement creates a conflict of interest for Willis, Roman argues, and therefore the case should be dismissed.
The judge will certainly see the difference. Whether the public sees it that way is another matter.
A grand jury has found probable cause that Roman and his co-defendants have committed serious crimes against the people of Georgia. Four of those defendants have admitted their guilt by pleading guilty. Roman’s motion does not allege any deficiency with the evidence.
Meanwhile, Judge Scott McAfee has ordered Willis to respond to the allegations by Feb. 2 and has scheduled a hearing for Feb. 15. Willis has not denied the claims, admitting only that she is “flawed” and “imperfect.”
Willis may have committed serious ethical lapses in managing her office by engaging in a romantic relationship with a subordinate. But, even if true, that fact has absolutely nothing to do with the guilt or innocence of Roman, Trump and their co-defendants. The judge will certainly see the difference. Whether the public sees it that way is another matter, hence the growing chorus of calls for Wade to step down from the case. This public criticism is already becoming a distraction for a case that is of paramount importance not only to Fulton County, but also to the nation. A prosecutor handling such a high-profile case knows that she will attract scrutiny and must be above reproach.
Conflicts of interest can arise in various contexts for public officials who lead prosecutors’ offices. These officials serve in dual roles as managers and attorneys. And as a manager of the district attorney’s office, Willis owes a duty to the people of Fulton County to make objective personnel decisions free from self-interest. If Willis supervised a subordinate with whom she was having an undisclosed relationship, or benefited personally from payments she authorized, she may have run afoul of state or county ethics rules. A breach of Willis’ ethical duties as a manager could expose her to disciplinary action by the Fulton County Board of Ethics, including public reprimand and monetary sanctions, but again, it would not merit her recusal from the case or its dismissal. A detailed treatment of the ethics issues involved can be found in this essay by former government ethics lawyers.
Willis’ alleged breach of fiduciary duty to the people of Fulton County to manage her office is entirely different from any conflict of interest she might have as an attorney. A prosecutor has a conflict of interest if she has a personal stake in the outcome of the case such that the public could fairly question the defendant’s right to a fair trial. Such a conflict might arise where the prosecutor has a relationship with a victim, where she is a witness in the case, or where she has a financial interest in the outcome of the case.
Willis’ alleged breach of fiduciary duty to the people of Fulton County to manage her office is entirely different from any conflict of interest she might have as an attorney. But a prosecutor does not necessarily have a conflict of interest in her role as an attorney if she has a relationship with a co-counsel on a case. Married couples may try cases together or represent opposing parties in the same case. In fact, my husband and I once prosecuted a criminal case together when we served as federal prosecutors in the same office. Being on the same side of the “v” in a case is not inherently a conflict of interest for romantic partners — it is an alignment of interest. Roman also alleges that Willis failed to file Wade’s oath of office, rendering the indictment invalid and requiring its dismissal. That outcome seems unnecessary and unlikely. Wade’s role in the case is to manage the litigation with other lawyers handling the substantive work. If Wade was ineligible to seek an indictment, other lawyers assigned to the case were. Even if the judge were to decide that Wade’s participation somehow tainted the entire prosecution such that it must be dismissed — a highly improbable event — the case could be refiled. Such an extreme remedy would be a public relations disaster for Willis, but the case would go forward. To be clear, these allegations are significant. If true, Willis’ conduct represents yet another self-inflicted wound that can be exploited by her critics to unfairly undermine public confidence in the prosecution. During the investigation of this case in 2022, Willis hosted a fundraiser for a political opponent of one of the targets of the investigation, Burt Jones, now Georgia’s lieutenant governor. By her supporting Jones’ rival for office, her impartiality in the case could be fairly questioned by the public. As a result, she and her entire office were removed from the case and it was reassigned to another district attorney. To date, no charges have been filed against Jones. If Willis engaged in an undisclosed romantic relationship with a colleague in the biggest case of her career, it will reflect an enormous lapse of professional judgment. But it is Willis who should be punished, not the people of Georgia. Her imperfections should not lead to injustice.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
