Appearances matter when it comes to members of our government, and perhaps even more so when it comes to criminal prosecutors. This is why Fulton County, Georgia, Judge Scott McAfee ruled Friday morning that while there is not an actual conflict of interest preventing District Attorney Fani Willis from pursuing the election interference case against former President Donald Trump, there is the appearance of one. McAfee therefore ordered either Willis or Nathan Wade, her appointed special assistant district attorney and former boyfriend, off the case.
Wade stepped down Friday afternoon.
McAfee’s ruling is a strong rebuke of Willis, of the lack of judgment she exercised in this instance and of her conduct.
McAfee’s ruling is a strong rebuke of Willis, of the lack of judgment she exercised in this instance and of her conduct. And that’s only appropriate. She fell short of acting in a way that acknowledges the enormous responsibility that she has been entrusted with. And McAfee was right to tell her so.
The judge’s ruling follows a claim by defendants (including Trump, Michael Roman, Rudy Giuliani, Mark Meadows and Jeffrey Clark) that Willis had or has a personal stake in the case against them because she financially benefited from her romantic relationship with Wade, whom she hired. McAfee concluded that the defendants failed to demonstrate an actual conflict of interest. Even so, the rest of his ruling was sharply critical of Willis. He said his ruling against the defendants “is by no means an indication that the Court condones this tremendous lapse in judgment or the unprofessional manner of the District Attorney’s testimony during the evidentiary hearing.”
Prosecutors have a responsibility to the public and are entrusted with significant powers. As McAfee noted, they are not merely advocates for one side of the criminal justice system, but they “must make decisions in the public’s interest.” The judge emphasized that “the prosecutor’s duty to the public creates an additional public interest that must remain unconflicted in every criminal case.”
This ruling is an indictment of Willis’ behavior and should serve as a strong reminder to prosecutors throughout the country that they have a special responsibility to the public and a unique ability to undermine the public’s faith in the legal system.
If the defendants failed to prove an actual conflict, one might ask why an appearance of a conflict matters. McAfee easily answers this. “The appearance standard,” he writes, “recognizes that even when no actual conflict exists, a perceived conflict in the reasonable eyes of the public threatens confidence in the legal system itself. When this danger goes uncorrected, it undermines the legitimacy and moral force of our already weakest branch of government.”
This is the crux of McAfee’s ruling. He is worried, rightfully so, about whether we, the public, view the legal system with respect, or whether we think it’s a system fixed against the public’s interest. And we are not just talking about the legal system writ large. In particular, we are talking about a case that accuses the former leader of the country of attempting to destroy our representative democracy from within. It’s hard to imagine higher stakes.
The last part of McAfee’s ruling analyzed whether “improper comment[s]” formed a separate basis for disqualification. The judge focused, in part, on a speech that Willis made on the weekend before Martin Luther King Jr. Day at an Atlanta church. Willis made this speech in response to the defendants’ accusations that she should be removed from the case due to her relationship with Wade. As McAfee noted, “the District Attorney described the effort [to disqualify her] as motivated by ‘playing the race card.’”
Willis is no doubt correct that Black Americans often face different and additional scrutiny. And McAfee is no doubt correct when he writes, “Providing this type of public comment creates dangerous waters for the District Attorney to wade further into.” Both of these things can be simultaneously and depressingly true. And while McAfee pointed out the dangers of such public statements, he concluded that under applicable law the speech did not indicate that defendants have “been denied the opportunity for a fundamentally fair trial.” Willis has an outsize role in this country and must be under monumental pressure as a result of her decision to pursue this case. Willis has an outsize role in this country and must be under monumental pressure as a result of her decision to pursue this case. So many people are holding out hope that Trump will be held accountable that Willis herself and the case she’s brought are being asked to bear more weight than any single case or prosecutor should. That’s why it’s disappointing that she has done damage to this case, and by virtue of that, decreased the chance to hold Trump accountable through the criminal justice system. McAfee noted that there is “a significant appearance of impropriety that infects the current structure of the prosecution team.” We never should have been here asking questions about Willis’ judgment and whether it undermines the public’s faith in our justice system. But here we are with, as McAfee describes, “an odor of mendacity” over the case. Willis is a county prosecutor bringing a state criminal case against the former president of the United States for allegedly seeking to unlawfully interfere with the 2020 election. She is human, she is flawed, and she has made bad choices. But, despite the defendants’ best efforts to remove her, she is still on the case.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
