How foolish move in Georgia could wreck key case against Trump

What was Fulton County district attorney Fani Willis thinking?

Her Georgia election conspiracy case was the open-and-shut one designed to nail Donald Trump for good; even salvation via one of his own presidential pardons would be out of the question.

But alleged ethical violations by Willis, who built the complex racketeering case against Trump and his cronies, threaten to hand the disgraced former president yet another get-out-of-jail-free card.

Trump has moved to dismiss Willis from the case. His legal team says allegations of an improper relationship between Willis and her special prosecutor, Nathan Wade, point to a serious conflict of interests.

Legal experts have noted that Willis hired Wade despite him appearing poorly qualified for the role. He earned huge amounts for the work, nonetheless. The reports of a romantic relationship between the pair have poured petrol on the flames.

Trump’s lawyer Steve Sadow filed a petition on Thursday asking for the judge to disqualify Willis for “her misconduct alleged in a motion filed by Mr Roman as well as her extrajudicial public statements falsely and intentionally injecting race into this case”.

Sadow’s remarks refer to Trump’s co-defendant, Michael Roman, the ex-president’s 2020 election aide, whose lawyers have already asked for Willis to be removed.

For Willis, 53, it had all been looking so promising: the case of a lifetime.

Three years ago, on 2 January, 2021, after losing the election, Trump called the Republican Georgia secretary of state, Brad Raffensperger, pressing him to “find” enough votes to overturn the state’s presidential election result.

A recording of this apparently blatant attempt to steal victory in the key swing state formed a key plank in Willis’s charge that Trump organised a giant racket designed to overturn the state’s 2020 election result.

It didn’t go unnoticed by Trump’s opponents that a successful prosecution in Georgia could doom Trump to jail time – even if he were to regain high office. Presidents can issue pardons only for federal crimes, and the Georgia indictment relates only to state crimes.

But now the dubious decision Willis made, to appoint a sparsely qualified young lawyer to help prosecute Trump, threatens to pull the rug from under her.

If her credibility is in question, so too will be her ability to prosecute Trump and his cronies.

Even worse, if a judge rules there is a conflict of interest, then the entire district attorney’s office would be disqualified from continuing with the prosecution.

Clark Cunningham, a law professor at Georgia State University, has noted that by stepping aside now, Willis would forestall her disqualification.

“I believe the judicious and farsighted course would be for Ms Willis to take a personal leave of absence and turn over control of the district attorney’s office, and the case against Mr Trump, to a career deputy district attorney,” he wrote in The New York Times.

“Doing so would be an act of public service by Ms Willis — and more important, offer the best option for keeping the criminal case on track and holding Mr Trump and his co-defendants accountable for their actions in the 2020 election if that is the just outcome.”

Another legal expert, Bruce Green, director of the Stein Center for Law and Ethics in New York, told i he thought the judge should and probably would throw out the defendants’ calls for Willis’s dismissal. “It’s being suggested that she took some of that money herself. Is that even likely? These allegations have not been proven,” he says.

He notes that senior prosecutors like Willis have “considerable power and discretion” in appointing assistants, and that while “Willis may have engaged in nepotism in appointing Wade to lead an important prosecution, it seems doubtful that any of the defendants have a legitimate cause to complain”.

But he concedes that Trump’s legal team and his supporters will make hay, at least in the court of public opinion, regardless.

The district attorney’s office is expected to file a response before 2 February, ahead of an evidentiary hearing set for 15 February before Judge Scott McAfee in Atlanta.

If, in mid-February, McAfee decides to remove Willis and Wade from the case, then the Prosecuting Attorneys’ Council of Georgia will have to find a replacement for Willis – something that could delay the case by years.

In part, Trump’s legal team called for Willis to be removed on account of supposedly “racially charged statements” she made at Bethel AME Church earlier this month, in front of a black audience. Willis’s speech appeared to be a response to what she perceived as racial slurs regarding her hiring of Wade.

Robert James, a black, former district attorney in Georgia’s DeKalb County, said the Trump team’s calls for Willis to be removed on the basis of the Bethel AME Church speech was unjustified.

“Her character is being assailed and she’s just responding, and I personally don’t see anything wrong with that,” he said. “How, if at all, does that affect her ability to prosecute this case effectively… I don’t really understand how it does.”

The spectre of race has cast a pall over Trump’s legal battles, with several black judges and black prosecutors assuming key roles in the tide of legal battles he faces.

In July last year, Trump suggested Willis had slept with a gang member she was prosecuting. He told a mob of his supporters: “They say there’s a young woman – a young racist in Atlanta – they say she was after a certain gang and she ended up having an affair with the head of the gang or a gang member. And this is a person who wants to indict me… wants to indict me for a perfect phone call.”

But concerns over Trump’s dog whistle remarks on race might not save Willis from accusations that she erred in hiring Wade for the pivotal Georgian electoral conspiracy case.

Professor Cunningham notes that Wade was hired as a special prosecutor in this complex, high-profile case despite a lack of experience in prosecuting complex criminal cases, including racketeering.

Trump’s legal team will gleefully point out that Willis and Wade were responsible for a special grand jury investigation — which has spanned about seven months and involved some 75 witnesses — that enabled Wade to pocket more than $650,000 from the district attorney’s office. The allegations that the pair were lovers, something not denied by Willis, will be icing on the cake – or the smoking gun in the claim of malfeasance – in the eyes of Trump’s lawyers.

Willis has until next Friday to respond to the allegations. It’s likely that Trump’s lawyers hope she announces her intention to stay on.

“In a different time, it might be different. I’m sure she regrets what she did,” says Professor Green. “I don’t think, given what we know now, she should resign. Because she’s an elected official, and she should not step aside for political concerns.”

But many Americans’ all-consuming concern at the moment is seeing Trump held accountable to justice. And that might now be at risk.

Prosecutors’ trials and tribulations

Attempts to prosecute Donald Trump in the three other criminal cases he faces might also face obstacles.

Department of Justice: Mar-a-Lago Documents

Trump is accused of illegally stashing classified documents taken from the White House in his Florida Mar-a-Lago mansion.

This case, built by Justice Department special counsel Jack Smith, looks cut and dried, too. The danger Trump faces, and his reckless response to it was demonstrated when he suggested, with no evidence, that the FBI planted the classified papers in his home.

But the jury trial will be held in southern Florida — this is Trump country, and just one Maga sympathiser on the jury could see Trump get off. In addition, the judge overseeing the case, Trump appointee Aileen Cannon, has also been overruled by senior judges for controversial pro-Trump rulings in preliminary hearings.

Department of Justice: Election Subversion

Special Counsel Smith has also charged Trump with four federal felonies in connection with his attempt to remain in power after losing the 2020 election. This case is in court in Washington, DC. Smith has won plaudits from legal experts for being very selective in the charges he’s made against Trump – keeping things simple and avoiding charges such as aiding insurrection that are hard to prove.

The no-nonsense judge in the case, has already made clear her disdain for those involved in the January 2021 Capitol riot by handing out harsh jail sentences to convicted rioters.

But the Trump legal team, in a bid to stall or even end the case, is claiming that his status as president makes him immune to the charges. The Supreme Court will now judge the merits of this defence.

Manhattan: Hush Money

In March 2023, Manhattan District Attorney Alvin Bragg was the first prosecutor to bring criminal charges against Trump. He claims the former president falsified business records as part of a scheme to pay hush money to women who said they had had sexual relationships with.

Falsifying records is a crime. But the case is complex, appears less serious than the other cases, and some legal experts think it hinges on an untested aspect of criminal law. In addition, the case has been widely blamed for giving Trump a boost in the polls.