Any rational person familiar with the behavior of Fulton County District Attorney Fani Willis during the prosecutorial misconduct hearings that finally ended last Friday has probably concluded that her conduct has created the “appearance of impropriety.” This, according to defense lawyers for former President Trump and several co-defendants, is sufficient to disqualify Willis and the Fulton County DA’s office from prosecuting the RICO case they launched last August. Indeed, defense attorney Harry MacDougald cited six examples of actual conflicts of interest, any one of which is sufficient to disqualify Willis and her office. Yet it’s unlikely that it will happen.
The only real question left is whether Judge Scott McAfee will do the right thing.
Why not? The decision must be made by Superior Court Judge Scott McAfee, who said on Friday that he would rule on the motion to disqualify Willis and her office in about two weeks. Unfortunately for the defendants, McAfee is a temporary appointee to the bench who must face Fulton County voters for the first time about 60 days after his ruling. Georgia’s Republican Gov. Brian Kemp appointed him last year to complete the term of retiring Judge Christopher S. Brasher. According to McAfee’s campaign website, his election will take place on May 21. Fulton County, which includes Atlanta, is overwhelmingly Democratic and its voters will be less than pleased with the judge if he disqualifies Willis and her office. (READ MORE from David Catron: Biden’s Cognitive Decline Continues Apace)
Further complicating matters is the fact that McAfee once worked in the Fulton County DA’s office and was supervised by none other than Fani Willis, according to a report in the New York Times. This presumably explains his weirdly passive response to her disruptive courtroom antics during her February 15 testimony. He allowed her to ignore questions, accuse defense attorneys of lying and imply that they represented a threat to democracy. McAfee’s supine attitude doesn’t bode well for disqualification. Nor do the questions he asked defense attorneys during closing arguments. Here’s how he responded to an attorney who questioned Willis’s claim to have repaid Nathan Wade back in cash for all his monetary gifts:
Attorney: If you do the math on what he actually paid for and what they testified she paid back in cash you still have over $9,200. $9,240, to be exact, is the amount of money they cannot account for in their testimony. And as your honor will remember, there was no mention of cash in Mr. Wade’s affidavit …
Judge McAfee: Before we get into that, let me ask you this: Let’s say the theory wasn’t even there that they had paid it back or that there had been any exchange. Should there first be a consideration of a materiality requirement?
Attorney: No.
Judge McAfee: Have you seen that in this jurisdiction? Well, it’s not in this jurisdiction. Have you seen that in any other jurisdiction?
Attorney: I haven’t seen that judge, and if was $6.00, that would still be improper.
Judge McAfee: Would it still be improper where it’s a per se disqualification? If someone, you know, buys their boss a stick of gum is that per se disqualifying because there’s no materiality requirement?
McAfee’s question was obviously not asked in good faith. He has already stated that no materiality requirement exists in his jurisdiction. The ridiculous “stick of gum” analogy is clearly meant to distract the attorney so he will stop talking about the preposterous claim by Willis that she reimbursed Nathan Wade in cash for their many romantic jaunts. This is not the only time that Judge McAfee deliberately interrupted defense attorneys to protect Willis. When an attorney for one co-defendant questioned her about gifts and personal benefits she received from Nathan Wade, Willis became belligerent and evasive. Instead of instructing Willis to answer the question, McAfee told the lawyer to sit down and shut up.
Attorney: The question on the floor involves aggregate gifts in excess of $100 and your testimony is that you did not receive an aggregate in excess of $100?
Judge McAfee: Alright, Mr. MacDougald, you can sit down now.
Attorney: I don’t believe she answered that question, your honor. She answered as to specific individual gifts.
Judge McAfee: And you’re not listening to my answer either. So we’re done.
This testy exchange was with defense attorney Harry MacDougald noted in the first paragraph above. He not only cited six examples of “actual conflicts of interest” involving Fani Willis in his closing argument on Friday, he also provided the best metaphorical description of the ethical burden prosecutors bear: “The administration of the law and especially that of the criminal law should, like Caesar’s wife, be above suspicion and should be free from all temptation, bias or prejudice so far as it is possible for our courts to accomplish it. Its blindingly obvious that Fani Willis has failed the “Caesar’s wife” standard. The only real question left is whether Judge Scott McAfee will do the right thing. (READ MORE: Non-Citizens Have Been Voting Since 2008)
His behavior in the courtroom suggests that he lacks the courage to do so 60 days before he faces Fulton County voters. He isn’t corrupt, but he may be a coward.
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