Opinion Despite McAfee’s jabs, Willis stays on Trump’s case. For now.
That said, the Fulton County Superior Court judge’s opinion was riddled with legal sophistry. After he found that “the Defendants failed to meet their burden of proving that the District Attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor,” the decision should have ended.
Instead, McAfee launched a series of unnecessary swipes at Willis. While acknowledging there had been no proof that Willis and Wade misled the court about the timing of the relationship (which was irrelevant anyway to the issue of a financial conflict), he still insisted “an odor of mendacity remains.” Judges are supposed to make factual findings and apply the law, not offer unsubstantiated opinion.
In addition, he chastised Willis’s demeanor on the stand (“the unprofessional manner of the District Attorney’s testimony during the evidentiary hearing”). One wonders if a man testifying in exactly the same manner — biting, unyielding and defiant — would have provoked such judicial scorn. Moreover, her attitude as a witness has no bearing on the recusal issue.
Most troubling, McAfee invited political players (“the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County”) to weigh in on “any unanswered questions that linger.” Judges rarely impugn the character of a lawyer by suggesting there was more to say — and then invite others to take a swing at her.
In short, McAfee made an awkward political compromise. He left Willis on the case for now (reducing the risk of his decision being overturned) but threw enough mud at her to satisfy his fellow Republicans and invite further political trouble.
As galling as this inquest might have been, Willis now needs to refocus on the real issue: Trump’s alleged racketeering and attempted coup. It’s her job so long as she is on the case to hold Trump accountable for actions that would have negated the ballots of Fulton County voters.
McAfee’s decision likely will not end the partisan firefight raging across Georgia. If one or more of the political actors McAfee invited to respond puts Willis’s license and/or position in jeopardy, she will be compelled to step away from the case. Willis’s highest obligation is to preserve the prosecution and vindicate Fulton County voters’ rights. If the choice is between fighting her own battles and keeping the case on track, she should do what is necessary to protect the case. To prepare for any contingency, she must make certain someone in her office is prepared to step in if need be. (Some former prosecutors not unreasonably have called on her to step down now to short-circuit the controversy.)
In addition, voters will have the chance to hold McAfee accountable as he runs this year to remain on the bench. His recusal decision will figure prominently in that race. If voters think he acted unfairly, they can boot him out. Indeed, women and especially Black women who cheered Willis’s indignant testimony may resent McAfee for allowing defendant Mike Roman, a right-wing operative involved in voter suppression efforts, to paw through Willis’s personal life. The assault on her echoes the treatment of other Black female prosecutors who have been threatened, harassed and demeaned for daring to stand up to Trump. (Consider District Judge Tanya S. Chutkan and New York Attorney General Letitia James, both of whom must have round-the-clock security and continue to face a barrage of social media threats and harassment.) More broadly, Willis’s treatment might fire up Fulton County voters, women in particular, to go to the polls for local, state and federal elections in November.
A word about timing: The sprawling RICO case was never likely to conclude before the election. Regardless of the recusal issue, the public probably was not going to even hear or see any evidence before the end of the year. Willis’s voluminous indictment set the stage for months of jury selection and possibly a year or more of trial (as seen in her other RICO cases).
There was value in presenting a complete picture of Trump’s scheme to overthrow the election, but in rejecting special counsel Jack Smith’s “less is more” philosophy, Willis sacrificed a swift trial. If Trump is to be held accountable this year, it will come on Election Day, in the New York state case and/or at the Jan. 6, 2021, trial in D.C.
In sum, McAfee’s ruling will not silence the political storm the Trump team delights in unleashing. Willis might have been treated unfairly, but a successful prosecution should take priority. The worst possible result would be to allow Trump to escape accountability for his actions. Willis must ensure that her personal error of judgment does not impair a successful prosecution — with or without her at the helm.
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