Special counsel Nathan Wade's resignation Friday from the racketeering prosecution of Donald Trump and others in Georgia was the right decision and, in fact, practically forced. Judge Scott McAfee's ruling on a defense motion to disqualify the head of Wade, Fulton County District. Lawyer. Fani Willis, left no practical alternative.
But it would be a mistake to assume that Wade's withdrawal puts an end to the ugliness and questions surrounding Willis's handling of the case.
To dispel the appearance of a conflict of interest arising from a romantic relationship between the two prosecutors, McAfee maintained that Wade or Willis, along with his entire office, would have to step aside. That made Wade's withdrawal, which many observers had been urging, the best way to begin cleaning up a distracting mess while allowing Willis to continue running his office and his most high-profile prosecution.
But the order and circus atmosphere of the multi-day evidentiary hearing that preceded it in some ways only served to intensify the controversy surrounding the case and ensure that rhetorical challenges continue.
Despite the decorous and professional language of McAfee's order, it raises several scandals about Willis's judgment and probity. Probably the most notable and enduring is his claim that “a stench of mendacity lingers” around Willis and Wade's testimony, specifically regarding the timing of their relationship. It's a phrase that could have continued political impact in Georgia and nationally.
Whatever the judge's intention, his analysis strengthens Trump and other Republicans in Georgia, which is among the most contested states in the upcoming elections. With a special committee created by the state Senate investigating Willis and a new law allowing oversight of district attorneys' offices, Georgia Republicans will have plenty of opportunities to continue sounding the refrain that Trump is not the problem. but Willis. A prosecution revolving around an infamous Trump comment – “I only need 11,780 votes” – is now tainted by a “smell of mendacity.”
That reality may be deeply unfair, and is certainly steeped in a Southern mix of racial and sexual politics, but Willis's conduct will continue to come under intense and even undue scrutiny, particularly as both she and McAfee face elections this year. The motion to disqualify her has already drawn attention to issues that really had no bearing on the legal issues at hand, including precisely when she and Wade began their relationship.
Part of the responsibility for the ongoing monstrosity the case has become must lie with McAfee. The Fulton County Superior Court judge has earned generally high marks for his even-keeled character and solid preparation for a monstrous case. But the scant allegations in Trump's co-defendant Michael Roman's original motion could have been resolved without the chaotic evidentiary hearing McAfee called. The judge could have even denied the recusal motion and left it at that.
McAfee's ultimate rejection of the motion is unquestionable because there was never a plausible claim of a financial conflict of interest in Willis's relationship with Wade, and nothing less than that could justify the district attorney's disqualification. Regardless of what Wade spent on Willis (on flowers, fancy meals, or even airfare), it was not only unfounded but also foolish to suggest that such benefits fueled the district attorney's handling of the case. And that's all the judge needed to know to reject the defendants' preposterous argument.
McAfee, however, allowed the show to go on. And while he appropriately rejected the claim of a conflict, he waded into amorphous “appearance of conflict” territory to justify the difficult choice he offered Willis and Wade by forcing one of them to drop the case.
But Wade's withdrawal cannot clear the case of the stink bomb that Roman and Trump dropped in the process. Even if Willis takes back the reins and pursues the case with impeccable judgment and prudence from this point forward (as there is no reason to doubt he will), it will be while Trump and his defenders shout this counternarrative from the rooftops.
This whole misadventure is just the latest in a recent series of undeserved breaks for Trump in his determined quest to prevent all of his trials from moving forward before the November election. Willis and a Fulton County grand jury returned serious charges against the former president. The odds of reaching a trial and a verdict that the American people can consider when choosing their next president are now dangerously close to zero.
Harry Litman is the host of Podcast “Talking about federals” and the new Talking about San Diego Speaker series. @harrylitman
