State of Georgia v. Trump, et al., Indictment No. 23SC188947 (Sup. Ct.). Order re. Motion to Dismiss and Disqualify Fulton County District Attorney, March 15, 2024.

Last January, one of the several associates of former president Donald Trump, who now faces criminal charges in Georgia, filed a motion to Dismiss the indictment against him and to disqualify District Attorney Fani Willis because of her involvement with a special prosecutor who she selected, supervised, and paid, while at the same time engaging in a romantic relationship with him said to confer a financial benefit.

The financial benefit allegation stemmed from the several cruises and vacations taken by the District Attorney (“DA”) and the Special Assistant District Attorney, Nathan Wade, which were said to have been paid for by Wade from monies derived from the compensation Willis provided, thereby providing her with a benefit derived from his employment. Willis refuted this allegation by testifying in court that she repaid Wade in cash, thereby negating any financial benefit.

The court was unable to conclude that the evidence presented was sufficient to support a direct conflict of interest mandating disqualification, but the court did find that her behavior created an appearance of impropriety demanding remediation before proceedings could continue. The court concluded that either Willis and her office needed to resign from the case or that Wade needed to resign from the case. Wade resigned within hours of the publication of the opinion.

Several strategic decisions await determination by counsel, including not only whether to appeal from this disqualification motion but also whether to challenge the dismissal of many, but not all, of the counts of the indictments against the former president and his associates.

Although not central to the court’s decision, the judge criticized Willis’ behavior as a witness. The judge found the discrepancies between Wade’s statements in divorce proceedings and in this case to be of concern. The court jettisoned the testimony of former Wade attorney and law partner Terrance Bradley, as at the hearing Bradley asserted he could not recall statements made weeks prior to the hearing, many of which were reduced to writing as text messages.

The court pointed to statements made by Willis to her faith congregation concerning this case, in which she asserted that some were “playing the race card.” The court found that this out of court statement against unnamed individuals could create an atmosphere of racism within the proceedings, which in turn could be damaging to the moving defendant.

The court reiterated that a prosecutor is not his or her own person. Having assumed the duties of criminal prosecution, a district attorney must act on behalf of the state and its people and refrain from any conduct detrimental to a particular case or to the administration of justice overall.

While the prosecution has been duly chastened, and remediation required, it may nonetheless be that the “odor of mendacity” the court has perceived will be easily dissipated from the atmosphere surrounding this proceeding.

Justlawful observes: it is difficult to believe that the court chose the infrequently used term for lying, i.e., “mendacity,” without deliberately alluding to its use in Tennessee Williams’ Cat on a Hot Tin Roof, in which lying and the costs of so doing informed and inflamed familial relationships.