Legal Analysis: Fani Willis Recusal Order

Judge Scott McAfee orders Willis and her office to step aside or to replace Wade.

Read the Order Here.

Analysis of Judge McAfee’s Disqualification Ruling

Judge McAfee determined that the Defense did not meet the burden of proof to prove that the Prosecution suffered under an actual conflict. However, he ruled that there was an appearance of impropriety that inflicted the prosecution team going forward.

He believes this appearance must be removed by exercising one of two options. Discussed further down.

Let's start with the financial allegations. McAfee found the lack of documentation concerning and the reimbursement in cash problematic. However, this didn’t rise to the level of provable misconduct which would require a provable financial benefit due to the hiring of wade. McAfee did not find a financial benefit in prolonging the case or exceeding expenses.

That being said, McAfee did issue a harsh rebuke. He condemned the lapse in judgment and unprofessional manner of the District Attorney’s testimony on the stand.

He offers this tantalizing prelude of things to come:

“ Other forums or sources of authority such as the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County may offer feedback on any unanswered questions that linger.” 

But that does not end the analysis. Judge McAfee did find the “appearance of a conflict”. The Georgia Supreme Court has adopted this approach:attle v. State, 301 Ga. 694, 698 (2017) (“Certainly, a conflict of interest or the appearance of impropriety from a close personal relationship with the victim may be grounds for disqualification of a prosecutor.”) This requires a finding that the prosecution is BEHAVING OR ABOUT TO BEHAVE IMPROPERLY. This type of conflict exists when it shakes the underpinnings of the legal profession itself.

Judge McAfee also harshly criticized Willis for casting racial dispersions at a defendant for filing a pre-trial motion.

The Two Options

Either

The District Attorney may choose to step aside, along with the whole of her office, and refer the prosecution to the Prosecuting Attorneys’ Council for reassignment. See O.C.G.A. § 15-18-5.

Or

Alternatively, SADA Wade can withdraw, allowing the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.

What’s Next For Fani Willis and Nathan Wade

If I was Willis I’d remove my office from the case or step down as DA. She will most certainly face a flurry of investigations if not impeachment and she should gracefully step aside and let Wade continue with the prosecution. He is the only one left to carry the ball.

No one will touch this case now. This isn’t a hard choice.