Fulton County District Attorney Fani Willis has overcome attempt after attempt to delay and derail her relentless pursuit of accountability for election interference.
So far, Donald Trump and his allies have come up short.
Late Monday, we saw the latest: an allegation from Trump’s co-defendant Michael Roman. He claims that Willis has a personal relationship with a special prosecutor she appointed to the case, Nathan Wade.
The accusation was particular and sensational — and it’s immediately clear the judge isn’t the only audience. As if on cue, Trump issued a salacious social media post suggesting impropriety, followed by similar comments on Tuesday morning.
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Credit: contributed
The DA has already indicated a response is forthcoming. She has more than earned time for us to hear what she has to say. Willis has faced countless attacks and attempts to undermine her work and the decisions of the grand jury — from falsehoods about her personal life to repeated threats to her safety.
Credit: contributed
Credit: contributed
The problem with the claim — and the motion itself — is that the allegations are speculative. As legal and ethics experts, we are skeptical that they could ever result in disqualification.
Before everyone settles in for a spectacle, we need to step back and consider what we know, and what we definitely do not.
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Credit: contributed
What we do know: Even if every allegation is accurate — a big if — there’s no impact on the question of the defendants’ guilt. And there doesn’t seem to be any basis for disqualification under Georgia law.
The state’s test for disqualification is both specific and demanding. A prosecutor must have a forbidden personal interest in securing the defendant’s conviction. Roman alleges that Willis violated contracting rules, but there’s nothing in the motion connected to any improper interest in obtaining Roman’s conviction. For example, Wade’s salary is not contingent upon that outcome.
Beyond this test: the motion hasn’t identified any misconduct that unfairly prejudiced the defense. Roman has no personal harm to object to other than that he’s being prosecuted for alleged crimes and doesn’t like it. Georgia ethics and criminal law experts agree, according to initial news coverage.
Wade is a contract attorney, brought in for his expertise. That’s common practice when DA’s offices are short-staffed. He’s not an independent prosecutor, like Special Counsel Jack Smith in the federal election interference case. Unlike Smith, Wade doesn’t make prosecutorial decisions independent of Willis.
Here is what we don’t know: Whether any of this is true. Roman’s lawyer says she can back up her allegations, but she’s offered no evidence. It’s wrong to ask people to take such a serious claim on faith. Once made, it’s difficult to put the toothpaste back in the tube. Right now, we don’t have proven facts. We have allegations, purportedly from a sealed divorce filing. That’s not exactly unbiased source material, as anyone familiar with divorce proceedings can tell you. And the stakes are high. So we shouldn’t get out ahead of our skis until we hear from Willis, understand the facts and can evaluate the actual legal arguments.
While we wait, it’s important to consider the context. None of the allegations are about the substance of the case or the strength of the prosecution.
We know that in 2020, Georgia voters made their decision in a free and fair election. Then Donald Trump, his lawyers and allies, a group of state party officials and 16 fake electors — several of them co-defendants in this case — allegedly tried to overturn that decision. They thought they should get to decide instead. We know that, through a relentless pursuit of the facts, the DA put together a case that was vetted by around four dozen everyday Georgia citizens, first on a special and then on a regular grand jury. They reviewed evidence over the course of months, ultimately deciding there were likely crimes committed and that accountability should be pursued.
They’re not alone. Experts agree: the evidence that we’ve already seen from the prosecution is strong. That’s proven by multiple defendants – including prominent Trump lawyers like Jenna Ellis, Sidney Powell and Kenneth Chesebro – having admitted to criminal conduct and pled guilty.
Next, we know some of these same arguments made by Roman have already been shut down. Wade was previously accused of not filing his oath of office paperwork on time. Judge Scott McAfee rejected this argument, saying it wasn’t required in this case and there was no reason to throw out the indictments.
Lastly, let’s remember what we know about the defendant who brought this motion. Michael Roman made headlines for his alleged role in implementing Trump’s plan to organize slates of fake electors in battleground states. That’s what led to his indictment on seven felony counts. This is a political operative who allegedly has used disinformation and racist scare tactics to advance the political causes of his bosses, including Trump.
Ultimately, this case is about Donald Trump and his allies – Roman included – attempting to throw out the votes of Georgians and overturn an election. Whatever the outcome here, it won’t change what these defendants did during the 2020 election. They have tried, and will continue to try, to distract from this basic fact. We must not let them.
Norman Eisen was special counsel to the U.S. House Judiciary Committee during the first Donald Trump impeachment and trial and also served as President Barack Obama’s ethics czar and ambassador to the Czech Republic.
Richard W. Painter is a professor at the University of Minnesota Law School and was the chief White House ethics lawyer under former President George W. Bush.
Joyce White Vance is an MSNBC columnist and NBC News and MSNBC legal analyst. She is a law professor at the University of Alabama School of Law and a former U.S. attorney in the Northern District of Alabama.
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