Creating an Appearance of Impropriety by Purporting to Dispel One

The key point in Judge McAfee's ruling on the motion to disqualify Fani Willis and Nathan Wade from the Georgia state court case against Donald Trump and his co-defendants is that the defendants were not in any way prejudiced by Willis's romantic relationship with Wade. I'm glad Judge McAfee reached that conclusion, but he nonetheless deserves fairly withering criticism on at least two grounds.

First, in light of his reasoning, Judge McAfee should not have held the distracting and time-wasting evidentiary hearing at all. Second, his conclusion that the Willis/Wade relationship created the appearance of impropriety was a non sequitur in light of his principal conclusion. Worse, that very conclusion itself creates a substantially greater appearance of impropriety than anything that Willis or Wade did.

Let's begin with a brief synopsis. Everyone paying the slightest bit of attention understands that the real motive for the defendants' motion to disqualify Willis and Wade was to derail the prosecution. The ostensible legal argument, however, alleged a conflict of interest. Willis hired Wade as a Special Assistant District Attorney, the allegations go, in order that Wade could get paid by the state, and he in turn would use the money he received to pay for vacation travel for himself and Willis; that alleged fact in turn gave Willis a financial stake in Wade continuing in his role, which in turn gave her a financial stake in the prosecution continuing. But a prosecutor ought to decide whether to keep a case going against defendants based on the law and facts, not a financial stake in the case. Thus, the argument concluded, so long as Wade was on the payroll and her boyfriend, Willis had an improper financial incentive.

Those allegations could in theory establish an improper financial incentive. In Young v. United States ex rel. Vuitton et fils (1987), SCOTUS held that it was improper to appoint an interested opposing party in ongoing civil litigation as the prosecutor of a criminal contempt arising out of that matter. To be sure, there the conflict was not simply financial, but one can certainly imagine that even a purely financial incentive would distort prosecutorial judgment. And Georgia is entitled to have stricter conflict-avoidance rules than the federal courts or various other states.

But that's all in theory. What about in fact?

As Judge McAfee acknowledges, "[w]henever a private attorney -- like Wade -- is paid by the billable hour, a motive exists to extend or prolong the assignment." Judge McAfee quickly dismisses that "tension" as one "that the legal profession has long accepted." If that's so, however, then it's hard to see how any of the defendants' allegations could have risen to the level of a disqualifying interest.

The defendants claim that Wade shared the money he received for his services with Willis by paying her portion of vacation expenses along with his. Willis pushed back hard, claiming she reimbursed Willis in cash. Even if that's not true, however, Willis would have received at most the same financial benefit as Wade could (if we assume that Wade would have paid for his portion of the vacation expenses out of separate funds and used all of what he received as a Special ADA to subsidize Willis). But if the size of the financial incentive Wade received was tolerable--indeed, "long accepted"--it's hard to see why shifting that incentive from one prosecutor (Wade) to another (Willis) creates a problematic conflict of interest.

Moreover, any financial incentive Wade and/or Willis had to prolong Wade's work on the case actually works to the benefit of the defendants because prolonging--i.e., dragging out and delaying--the case is exactly what they want. The closer the trial moves to the November election, the easier it becomes for Trump and all of his co-defendants to find at least one juror to resist voting to convict on the ground that the case is politically motivated.

In any event, as Judge McAfee acknowledges in his opinion, no improper incentive Willis had to drag the case out to funnel money to Wade influenced Willis. It's worth quoting Judge McAfee nearly in full (minus citations) on this point:

Defendants argue that the financial arrangement created an incentive to prolong the case, but in fact, there is no indication the District Attorney is interested in delaying anything. Indeed, the record is quite to the contrary. Before the relationship came to light, the State requested that trial begin less than six months after indictment. Soon thereafter, the State opposed severance of the objecting defendants who did not demand their statutory right to a speedy trial. . . . The State amended its proposed timeline in November 2023 to request that the trial commence less than one year after the return of the indictment. And even before indictment, the District Attorney approved a Grand Jury presentment that included fewer defendants than the Special Purpose Grand Jury recommended. In sum, the District Attorney has not in any way acted in conformance with the theory that she arranged a financial scheme to enrich herself (or endear herself to Wade) by extending the duration of this prosecution or engaging in excessive litigation.

Crucially, every indication that Willis was unaffected by any financial incentive running through Wade identified in that extremely persuasive paragraph was known before and without holding an evidentiary hearing. Thus, Judge McAfee's reasoning demonstrates that there was no reason to hold the evidentiary hearing. He could and should have simply denied the defendant's motions on the ground that there was no prejudice to them from anything they alleged (and indeed that their allegations, if true, would benefit them) while referring their allegations to the Georgia bar to investigate any impropriety.

Given the absence of any prejudicial conflict, why did Judge McAfee require either Willis or Wade to leave the case in order for it to proceed? He found an appearance of impropriety largely based on the dubious testimony of various witnesses about when Wade and Willis started dating. Here is how he put the point: "neither side was able to conclusively establish by a preponderance of the evidence when the relationship evolved into a romantic one. However, an odor of mendacity remains."

Okay, so Wade, Willis, and/or other witnesses may have lied under oath. If so, that's bad and another item for possible referral to the Georgia bar. But it has nothing to do with anything that could possibly prejudice the defendants.

If the defendants had alleged that Wade, Willis, and the rest of the legal team working on this prosecution had weekly drunken parties at which they engaged in group sex, that too would create the appearance (and, insofar as there was any pressure on underlings to participate, the reality) of impropriety, but it would not be a reason to disqualify anyone from the case. Having concluded that Wade and Willis were not influenced by any improper incentive and in light of the fact that the only allegedly improper incentive would benefit the defendants, Judge McAfee could draw no connection between any appearance of impropriety and the case.

Judge McAfee has given the defendants a great gift. Holding the hearing rather than immediately denying the defendants' motion generated substantial delay that could now be compounded by additional delay via appeal.

In addition, the "appearance of impropriety" finding poisons the jury pool. In the course of considering the appearance question, Judge McAfee quotes Justice Scalia's explanation of why he did not recuse himself from a case involving Vice President Cheney in light of a hunting trip he took with Cheney: "a reasonable person is not an uninformed member of the public with only a passing knowledge of the facts at hand."

Maybe so, but voir dire to select a jury (if the case ever goes to trial) will aim to eliminate from the jury those people who bring extensive knowledge of the case. It will likely be impossible to seat a jury consisting only of people with no exposure to news coverage of the maneuvering thus far. As a result, it is quite likely that typical jurors will have paid only a little attention to the pre-trial maneuvering--just enough to know that there was something that appeared a bit fishy about the prosecution. Judge McAfee's conclusion that there was an appearance of impropriety will thus create one.