A Scandal’s Fine Print

By: James Trusty

The recent filing of a motion for disqualification and for dismissal of the Georgia RICO case involving former President Trump is getting plenty of attention for its salacious details. And indeed, a District Attorney selecting an underqualified love-interest to serve as Special Prosecutor is newsworthy stuff, particularly with Mr. Wade filing for divorce just one day after his questionable appointment. But the real story—the precise legal issues that are implicated in Fani Willis’ reckless conduct—is much more important that simply establishing her poor judgment.

The motion certainly lays out a case that DA Willis and Nathan Wade are involved in a romantic relationship, and his credit card bills, if nothing else, apparently document Caribbean cruises, Napa Valley winery weekends, and a jaunt to Florida for the prosecutorial pair. Notably, as the divorce proceeding heats up, we can expect painful depositions and, most likely, evidence that Mrs. Wade may have obtained from private investigators (grainy footage of hotel trysts likely to make their way to TMZ). Now might be the time for Mr. Wade to settle.

The heart of the motion, however, is only incidentally connected to the love story. The specific allegation is that Willis bypassed the statutorily required process of obtaining permission to appoint a Special Prosecutor from the Fulton County Board of Commissioners. Further, the motion cites a statute requiring the appointment to be given to the “best qualified candidate,” and it is becoming clear that Mr. Wade has never tried any felony case, much less a complicated RICO involving election fraud and high- profile defendants. One can fairly ask, wouldn’t a large prosecuting office like the Fulton County District Attorney’s Office have qualified career prosecutors that Willis could have selected? The icing on the malfeasance cake here is that along with the purposeful evasion of a governmental permission slip, Georgia law requires the Special Prosecutor to file an oath of office with the court, which intentionally mirrors the oath that any other authorized prosecutor swears and signs at the onset of their term. This was apparently not done in the case of Mr. Wade either.

Willis’ reaction was to run to an African-American church and use the pulpit to claim victimhood by racism. She also vaguely referred to her “imperfections” and suggested Wade was a “rock star” selection who happened to be her friend. The written response to the motion, due February 2nd, will be more enlightening than the political grandstanding of last weekend. It will be interesting to see if the DA concedes the fact of the relationship but argues that it does not rise beyond an ethical question to an issue with a direct impact on the indictment. That angle might be the most credible one for Willis to pursue, but predictions for a case plagued with gaffes (like the grand jury foreman’s dishearteningly embarrassing media tour) is not easy.

The gravamen of the motion does not rest entirely on ethics and poor stewardship over Fulton County tax dollars, as Wade’s firm is believed to have billed nearly $1 million at this point. It is that Willis made a conscious decision not to comply with a mandatory selection and oath process, and that renders Nathan Wade powerless to use the grand jury, to subpoena and question witnesses, and to have sought the indictment in the first place. If the Court accepts that premise, the indictment likely gets dismissed. Further, the defense motion cites a law in Georgia that if the DA is disqualified, her entire office is similarly disqualified from participating in the case. Putting those two remedies together would practically end the Georgia RICO case in its entirety, as the likelihood of a neighboring jurisdiction picking up that wounded case is slim.

There are other rabbit holes of interest in this part of the Georgia pretrial litigation, like why one of Mr. Wade’s billing entries for 2022 reflects a meeting with someone from the White House. This is particularly intriguing in combination with White House visitor logs showing three visits from New York Attorney General Letitia James in 2022 and 2023. I served as an Assistant State’s Attorney in Maryland for 10 years, and even with my office participating in some very high-profile cases, none of us ever received an invite to meet with White House officials.

All analysis of the motion needs to be tempered by the fact that we have not yet seen the responsive pleading, but the hearing on this motion—currently set for February 15—should provide fascinating morsels for legal analysts and tabloids alike.