Given the ongoing challenges she is likely to face, Georgia District Attorney Fani Willis may best help her prosecution against former President Donald Trump by taking a back seat after a scathing ruling described an “odor of mendacity” surrounding her testimony about a relationship with special prosecutor Nathan Wade, legal experts said.
Crucially, Judge Scott McAfee didn’t actually conclude that Willis had perjured herself or received a material financial benefit from hiring or dating Wade. However, he said reasonable people “could easily be left to wonder” whether Willis resumed a romantic relationship with Wade or was receiving financial benefits unless one of them stepped aside. Wade resigned later on Friday.
The Georgia case alleges that Trump and 18 co-defendants – four of whom have taken plea deals – participated in a multi-pronged conspiracy to steal the 2020 presidential election.
While Willis can still prosecute the case following the ruling, she may well face challenges to her law license at the State Bar of Georgia – even if experts don’t expect those challenges to succeed based on existing evidence. She could also have to deal with other state regulators. Even before the decision, a conservative group asked the State Bar to open disciplinary proceedings against Willis and Wade.
“She survived today, she survived this opinion, but this is not going away,” Andrew George, a trial lawyer and adjunct professor at the Georgetown Law Center, told USA TODAY within hours of the ruling.
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“The scrutiny is going to only build and build because her presentation and Mr. Wade’s presentation during this process were not convincing,” George said.
Ethics challenges likely to come
McAfee himself alluded to the possibility of further repercussions in his Friday decision, which criticized Willis’ “tremendous lapse in judgment” and “unprofessional manner.”
“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,” McAfee wrote.
That statement, coupled with his “odor of mendacity” comment, was “an invitation” for someone to bring up an ethics charge for lying, Ryan Goodman, a New York University law professor, said on CNN.
“I can’t imagine that somebody won’t take up that invitation – it just takes a group of lawyers to file an ethics complaint,” Goodman said.
Chandelle Summer, a Georgia lawyer who has worked as both a prosecutor and public defender in the state, told USA TODAY she expects bar complaints against Willis will be coming in light of the case’s high profile.
“It’s such a politically charged case, I don’t think they’re going to leave any stone unturned,” Summer said.
Within hours of McAfee’s ruling, there were calls to go after Willis’ law license.
“For Fani Willis to KEEP HER JOB on the Trump case, or even keep her law license after GPS data clearly showed she lied is INSANE,” right-wing commentator Glenn Beck posted on X, formerly Twitter.
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Disbarment unlikely with existing evidence
Still, experts said Willis is unlikely to face disbarment given the evidence available so far didn’t definitively show she lied under oath.
“If it were proven that she lied under oath, I think that would be grounds for disbarment,” George said. “However, that would probably require more proof than currently exists.”
Data from Wade’s cellphone, introduced by Trump’s legal team, showed Wade was in the vicinity of the condo Willis was staying in 35 times the year before Willis and Wade acknowledged a romantic relationship, including twice late at night. But Willis testified that Wade visited the condo before they were romantically involved.
McAfee said the cellphone data didn’t prove when the romantic relationship started.
“Even after considering the proffered cellphone testimony from Defendant Trump, along with the entirety of the other evidence, neither side was able to conclusively establish by a preponderance of the evidence when the relationship evolved into a romantic one,” McAfee wrote.
Summer expected the State Bar to rely on McAfee’s opinion, which found the appearance of impropriety in the case, but not the existence of an actual conflict of interest.
“The State Bar is probably not going to get involved in this case in terms of prosecuting Fani Willis or Nathan Wade unless they can prove that the relationship existed prior to his hiring and that they lied about it – unless they can prove perjury,” Summer said.
Lesser punishments possible
George noted that Willis could be hit with a lesser punishment by the State Bar based on accusations surrounding her conduct, which include not just perjury but also allegations of receiving financial kickbacks from Wade after hiring him for a lucrative position.
“It could be a temporary suspension, it could be a citation, essentially, a listing on a naughty list, if you will,” George said. “It very well may not happen to her, but if she were to face any kind of negative consequence from the State Bar, that would be potentially very damaging to her,” George said.
However, Willis and Wade fought back against claims of wrongdoing. They both testified that she repaid him in cash for roughly her share of expenses for shared vacations that were shown on his credit card.
And McAfee concluded Willis wasn’t motivated to prosecute the case by wanting to get money from Wade. While the defense teams argued financial kickbacks could be an incentive for Willis to prolong the case, McAfee noted prosecutors asked for a trial within six months of the indictment.
Anthony Michael Kreis, a Georgia State University law professor, was skeptical that Willis would face any repercussions as part of the State Bar’s disciplinary process. He told USA TODAY a lawyer is almost never disciplined by the bar without either a criminal conviction or an allegation of mishandling client funds, and perjury in particular is “really hard to prove,” especially when trying to nail down and categorize an adult relationship.
“Whether that’s a relationship or dating or just flirting, that’s really something that’s so subjective and so beholden in the eye of the beholder, that you can’t really prove that with a kind of degree of accuracy,” Kreis said.
Other investigations, election coming, appeal
Beyond any potential issues with the State Bar, Willis faces threats of unpleasantness – or worse – from other authorities in Georgia. She is already under investigation by the Georgia Senate, which solicited testimony earlier this month from the attorney in the Georgia election case who brought the original motion for Willis to be disqualified.
Georgia’s governor also signed a law Wednesday to provide legislative fixes to a new commission with the power to sanction and remove state prosecutors. The commission could eventually look into Willis.
Although such investigations could bring further political baggage for Willis, Kreis didn’t expect her to take any major hits from them.
“Unless there’s just incredibly inculpatory evidence to suggest that she received some kind of kickback, I just don’t see anything really coming out from that,” Kreis said.
Willis also faces a primary election in May against a former prosecutor in heavily Democratic Fulton County, and if she survives she will go to a general election in November. Those will be added forums to keep the allegations alive.
Defendants in the election case could also continue pursuing the issue in the courts by seeking an appeal before the case has been fully resolved at the trial level. That would mean asking McAfee for what’s called a “certificate of immediate review.”
“It’s a case of such importance that I think that the judge very well could grant a certificate of immediate review,” Summer said.
Kreis put the odds at 50-50 that McAfee would allow that immediate appeal, but thought the appellate court was very unlikely to then take up the issue.
“Judge McAfee’s opinion is written in such a way that is thorough enough and detailed enough, and the findings of fact are sufficiently in the DA’s favor here, that there is a really minuscule likelihood that this will be taken up on appeal,” Kreis said.
Should Willis remove herself?
Former Justice Department prosecutor Andrew Weissmann said on MSNBC that the way forward is for Willis to voluntarily recuse herself so that anything that happens to her in terms of ethics doesn’t taint the case.
“I don’t know that she has it in her, but I think she has to say, ‘I’m going to appoint a chief assistant who’s going to oversee this case,'” he said. “She clearly has no credibility with this judge and these issues are going to be taken up – and the judge invites these issues to be taken up – by all sorts of other Georgia regulators.”
Several of the defendants, including Trump and Rudy Giuliani, are charged with making false statements and writings or conspiring to do so. The charges relate to different parts of the alleged conspiracy, including putting together a false election certificate to try to flip Georgia’s presidential election votes.
George noted those charges, in particular, saying Willis isn’t well positioned to lead the prosecuting team.
“It is very hard to avoid an appearance of impropriety where the prosecution team is led by somebody whose honesty before a court was found to be in doubt by the court,” George said.
Formally recusing herself could create more legal problems for the Georgia case than it would solve by opening up questions about whether the entire DA’s office needs to back out, Kreis said.
“It would basically concede that there was a conflict that she needed to step away from and that her office’s power has been tainted by that,” Kreis said.
Kreis said she could alternatively informally delegate responsibility to someone else to make all the big decisions and to handle day-to-day decisions, while still being behind the case.
“That might be a middle ground that she could achieve without running the risk of additional questions about the legal authority for her to recuse formally,” Kreis said.
First appeared on www.usatoday.com