A major revelation from Georgia’s Fulton County District Attorney Fani Willis last week led to upheaval in one of the most important cases of the last decade.
On Friday, Willis admitted to a “personal relationship” with special prosecutor Nathan Wade, who is working on the Georgia election fraud prosecution of Donald Trump and his 18 co-defendants. They both claim that the relationship only began after he was brought on to the case.
Trump and some co-defendants are seeking to disqualify Willis and her office from the case and have it dismissed, arguing that Wade and Willis’ relationship tainted the investigation. In a 176-page filing, in which she acknowledged the relationship, Willis denied claims that the case was tainted, calling allegations that she in any way profited from hiring Wade “meritless.”
The Root spoke to leading legal ethics experts to understand whether Willis should recuse herself from the case and, perhaps more importantly, what this means for Trump’s would-be prosecution.
What Do Ethics Experts Have To Say?
New York University law professor emeritus and legal ethics expert Stephen Gillers said that based on everything we know, there’s no cause to remove Willis from the case. “There are [no conflict or ethics issues] that could support removing her as prosecutor,” says Gillers. “There’s no justification for that argument.”
Gillers says it’s been “disappointing” to watch the narrative circulate that Willis should be disqualified over the relationship. “It’s more than disappointing to me that this idea that disqualification is warranted based on what we know keeps getting recirculated, not only by lawyers for Trump, but lawyers who speak to the media,” he said. “This should be shot down immediately as it is in no way a legitimate argument.”
The Elephant In The Room: Race
Paul Henderson, a former San Francisco Prosecutor, said that the scandal reminds him of a conversation he had with his mother about the different expectations placed on Black Americans in the workplace.
“We all make mistakes,” he recalled her telling him. “Don’t let them be intentional because you will be caught, and there will be severe consequences. It will be unfair. But that is your life in this profession as a Black professional.”
“I think that holds true for Fani as well.”
The bottom line is that none of these allegations merit her removal, he said. “Even those allegations… from critics and supporters of the person being prosecuted. None of it speaks to the evidence being used [in Trump’s case] nor the actual allegations or improper conduct from Donald Trump,” he said.
Ambassador Norman Eisen (ret.), a senior fellow in Governance Studies at the Brookings Institute and an expert in law, ethics, and anti-corruption, agrees with Gillers and Henderson that there is no basis to remove her.
“My initial reaction to the disqualification motion based on my own three decades of experience in criminal law was that this is a loser in the court of law,” says Eisen. “There’s no legal reason for her to step aside.”
That doesn’t mean Eisen agrees with Willis’ actions. “It’s just not smart for two prosecutors to have an undisclosed relationship in one of the most important prosecutions facing the nation,” he said.
What About Nathan Wade?
Trump’s allies have attempted to paint Wade as an unqualified nepotism hire. Eisen says that’s patently false. “It’s a lie that Mr. Wade is not qualified,” said Eisen, noting Wade’s extensive trial experience. “I think both of them are outstanding lawyers.”
However, Eisen argued that for the sake of preserving public trust, Wade should step down from his role. “There needs to be some accountability not just in court, but in the court of public opinion to restore public confidence,” he said. “I think Mr. Wade should follow-up his successful career and his success in this case, by voluntarily stepping away to help bring an end to this controversy.”
Should Willis Step Down?
Emory University Center for Ethics Professor Edward L. Queen II said that the media attention on the relationship could impact the jury in the upcoming trial against Trump and his co-defendants – even if it’s not allowed in evidence.
“It’s in the newspaper. It’s on TV. I assume it’s on Twitter or Tiktok,” said Queen. “So it’s already out there.”
Queen said that Willis’ decision to engage in an undisclosed relationship with Wade was “unfortunate” but that she shouldn’t recuse herself. “The challenge with stepping down is given certain changes in how Georgia is dealing with replacing prosecutors… it could kill the case in a much more absolute sense,” he said.
Willis stepping down could result in a massive delay, a decision not to appoint a new prosecutor or a decision to appoint someone who is “less inclined” to follow the case, explained Queen. “In the absence of a decision by the judge that this has tainted the case, I don’t feel that she should step down,” he said.
At the end of the day, says Henderson, the real story here is about Trump — not Willis’ relationship.
“Regardless of what Fani did or didn’t do, doesn’t mean that Trump did not do or engage in illegal activities,” he said. “And that’s the lead story. It’s disappointing that the lead story is lost in arguments from pundits and professional distractors talking about all of these other things that are all quite frankly red herrings.”