The resignation on Friday of Special Prosecutor Nathan Wade from the Georgia racketeering trial of Donald Trump and others was the right decision, in fact almost a forced decision. Judge Scott McAfee's decision on defense motion to disqualify Chief Wade, Fulton County. Atty. Fanny Willis left no practical alternative.
But it would be a mistake to assume that Wade's withdrawal puts an end to the ugliness and suspicion surrounding Willis's handling of the case.
To dispel the appearance of a conflict of interest arising from a romantic relationship between the prosecutors, McAfee opined that either Wade or Willis, along with her entire office, would have to step aside. That made Wade's withdrawal, which many observers had been urging, the best way to begin cleaning up the distracting mess while allowing Willis to continue leading her office and high-profile prosecutions.
But this, and the circus-like atmosphere of the multi-day evidentiary hearings that preceded it, only intensified the controversy surrounding the case and ensured continued rhetorical challenges.
Despite the polite and professional language of McAfee's order, many haymakers disagree with Willis's judgment and integrity. Perhaps most famous and enduring is his assertion that “the smell of lying is still there” about Willis and Wade's testimony, specifically regarding the timing of their relationship. It's a phrase that could have lasting political impact in Georgia and nationally.
Whatever the judge's intention, his analysis supports Trump and other Republicans in Georgia, which is among the most competitive states in the upcoming elections. With the creation of a special committee by the state Senate to investigate Willis, and a new law providing oversight of district attorneys' offices, Georgia Republicans will have plenty of opportunities to continue repeating the phrase that the problem is not Trump but Willis. The trial centered around Trump's infamous soundbite — “I only need 11,780 votes” — is now tainted with the “smell of lying.”
This reality may be wildly unfair, and certainly steeped in a Southern stew of racist and sexist politics, but Willis' behavior will remain under intense and even unwarranted scrutiny, especially since both she and McAfee face elections this year. The motion to disqualify her has already drawn attention to questions that have no bearing on the legal issues at hand, including specifically when she and Wade began their relationship.
Part of the responsibility for the enduring ugliness this issue has become must fall on McAfee. A Fulton County Superior Court judge received high marks overall for his even-keeled temperament and strong willingness to handle a case. But the thin allegations in the original motion filed by Trump's co-defendant, Michael Roman, could have been resolved without McAfee's chaotic evidentiary hearing. Rather, the judge could have rejected the disqualification request and left the matter at that.
McAfee's ultimate denial of this motion is untenable because there has never been a plausible allegation of a financial conflict of interest in Willis's relationship with Wade, and nothing less could justify the district attorney's exclusion. Whatever Wade spent on Willis — in exchange for flowers, fancy meals, or even plane tickets — was not only baseless, it was also ridiculous to suggest that such benefits led the district attorney to run the case. That's all the judge needs to know to reject the defendants' far-fetched argument.
But McAfee allowed the show to go on. Although he correctly dismissed the allegation of conflict, he wandered into the amorphous territory of “appearance of conflict” to justify the difficult choice he made to Willis and Wade of forcing one of them off the case.
But Wade's withdrawal cannot clean up the issue of the stink bomb that Roman and Trump dropped in the proceedings. Even if Willis takes back the reins and pursues the case with impeccable judgment and judgment from this point forward — as there is no reason to doubt she will — it will be while Trump and his champions are shouting this counternarrative from the rooftops.
This whole misadventure is just the latest in a recent series of unearned breaks for Trump in his single-handed quest to prevent all of his prosecutions from moving forward before the November election. Willis and a Fulton County grand jury brought serious charges against the former president. The odds of them reaching a trial and a verdict that the American people can consider when choosing their next president are now dangerously close to zero.
Harry Litman is the host of the “Talking Feds” podcast and the new speaker series Talking San Diego. @Harryletman
