CNN: Fani Won’t Recuse

So much for the smart choice.

Fani Willis will not recuse under fire for having employed her boyfriend for her big RICO case, and benefiting from the $650,000+ she paid him. So say her colleagues in the Fulton County DA’s office, according to CNN. No doubt that is what Willis is telling them too, as deadlines appear to either admit or refute the charges of personal gains and conflicts of interest in hiring Nathan Wade.

But will she stick to that approach over the next two weeks before a hearing in which she’s been subpoenaed to testify under oath?

Fulton County District Attorney Fani Willis has no plans to step down from the Georgia election subversion case over allegations she’s having an affair with her lead prosecutor, a decision driven in part over concern that her departure would effectively end the case against Donald Trump and his multiple defendants, sources familiar with the thinking inside the DA’s office told CNN.

The sprawling racketeering case still has no trial date, and Willis and her team are keenly aware that the window to go to trial before the 2024 election is rapidly shrinking. Any change in the team handling the prosecution would likely delay the proceedings, and it’s unclear if another prosecutor in Georgia would even be inclined to take up the case, given its political and legal challenges. …

Instead, Willis is preparing to counter arguments from Trump and other co-defendants, not by necessarily disputing claims about the relationship but by arguing that defense attorneys seeking to remove her are wrong on the law, sources said.

A number of Georgia attorneys have made the same claim — that the arrangement may look bad, but it’s not illegal. That seems like a very thin reed on which to place one’s hopes against an allegation of unethical behavior in a high-profile prosecution. And it looks worse when considering all of the circumstances, not just when cherry-picking individual elements. In the February 15 hearing, Willis will likely have to offer an explanation that covers all of these issues:

• The decision to hire Wade for one of the most complex and novel RICO cases in memory despite the fact that he has never prosecuted a felony case in his career before now
• The timing of Wade’s divorce, coming the day after Willis hired him
• The timing of their romance in relation to the hiring date and the divorce
• The amount of billing paid to Wade, as well as Willis’ personal benefit from it
• Wade’s contempt charge in his efforts to hide this income from discovery in his divorce

Those are issues of potential conflict of interest not just in the relationship but in pursuit of the indictment. Ashleigh Merchant, Michael Roman’s attorney, will undoubtedly argue that the prosecution was set up as a vehicle by Willis in order to enrich herself and Wade at the expense of Fulton County taxpayers, and that the divorce action was timed to ensure Mrs. Wade couldn’t benefit from it. That was the only reason to hire Wade at all, given his complete lack of prosecutorial experience and the plethora of other experienced legal talent that Willis could have hired.

Can Merchant prove that? Without other evidence and testimony, probably not — but there’s no doubt that such actions would violate the law, if proven. But also note that Merchant has subpoenaed others in the DA’s office, at least one of whom refused service. She may well have someone willing to testify in that regard.

But Merchant doesn’t necessarily have to go for the whole enchilada to get Willis and Wade tossed off the case either. All Merchant needs to do is establish that Willis got personal benefits from Wade as part of their relationship from the money she paid Wade to act as her attorney in the RICO case. The Georgia State Bar handbook expressly prohibits attorneys from “provid[ing] financial assistance to a client in connection with pending or contemplated litigation,” with a couple of exceptions for indigent clients. Wade spent thousands of dollars on Willis’ travel in just the receipts we’ve seen. The GSB handbook also bars attorneys from “enter[ing] into a business transaction with a client,” in case Wade tries to argue that he was just acting as Willis’ travel agent.

And there’s something in the GSB handbook that relates to Willis in these transactions, especially if she’s decided not to deny the relationship:

Gifts from Clients

[2] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted.

According to the bank and travel records, Willis received a number of gifts from the attorney she hired, amounting to thousands of dollars in travel expenses. Those seem a lot more substantial than “a token of appreciation,” especially since they appear to have come from the massive amount of funds that Willis paid her ‘attorney.’

None of those are laws, but they are the rules under which all attorneys are expected to operate in Georgia. Those rules exist to prevent situations like the mess that Judge Scott McAfee will have to unravel on February 15. McAfee will be a lot less concerned about the legal finesse Willis apparently will offer and a lot more about the ethics and rules that Willis and Wade have appeared to violate — in a RICO prosecution that’s already novel and politically driven.

The real reason Willis won’t recuse has nothing to do with the law and everything to do with politics. She chose Wade in part to benefit her boyfriend, but also in part because no other legit RICO prosecutor will take this case. If McAfee forces Willis and Wade off this case, he may or may not dismiss the indictment; even if he does, he’d do so without prejudice, meaning another prosecutor could take it up. But Willis knows that no prosecutor will — this was her political project. The specific and discrete crimes alleged in the indictment will likely get new indictments, but the racketeering charge won’t.

Maybe Willis can bluster her way through this, but McAfee doesn’t appear inclined to let her do so. Willis has to file a formal response to Merchant’s disqualification motion by tomorrow, a filing that is in effect under oath. If Willis is smart, she’ll walk away before setting herself up for further risk — especially with the subpoenas Merchant has already sent out for the hearing two weeks from now.

Addendum: This isn’t Willis’ only legal headache this week. Yesterday, an allegation of retaliation against a whistleblower emerged against Willis in an entirely unrelated case:

Less than a year into her tenure as Fulton County district attorney, in 2021, Willis met with Amanda Timpson, an employee in the district attorney’s office responsible for giving nonviolent juvenile offenders “alternatives to the juvenile court system.” During their conversation, a recording of which was reviewed by the Washington Free Beacon, Timpson claimed to Willis that she had been demoted after attempting to stop a top Willis campaign aide from misusing federal grant money meant for a youth gang prevention initiative.

According to Timpson, the aide, Michael Cuffee, planned to use part of a $488,000 federal grant—earmarked for the creation of a Center of Youth Empowerment and Gang Prevention—to pay for “swag,” computers, and travel. …

Less than two months later, Willis abruptly terminated Timpson and had her escorted out of her office by seven armed investigators, according to Timpson. When Timpson filed a whistleblower complaint the following year that alleged wrongful termination, Willis’s office issued a statement describing Timpson as a “holdover from the prior administration” who was terminated because of her “failure to meet the standards of the new administration.”

Willis looks like a rolling disaster as DA. She’s already been forced off another case for a political conflict of interest, too.