Take a Load Off Fani

Scott McAfee, a superior court judge in Fulton County, Georgia, who oversees Donald Trump’s election subversion trial, cut the baby in half on Friday. In ruling on the defense motion to remove District Attorney Fani Willis and her lead prosecutor from the trial, McAfee decided she gets to stay, but he needs to go. 

This may look like a half-victory for the 45th president, but he’s pumping his tiny fist over the outcome. Delay is Trump’s only M.O. now, and throwing his golf cart in front of the train thundering down the track in Georgia is his best recourse. When the facts are against you, argue the law, and when both are against you, kick sand in the wheels of justice to make them grind ever more slowly. 

Trump got most of what he wanted when McAfee said yes to a dilatory defense motion for an evidentiary hearing into whether Willis had appointed her “boyfriend” to prosecute him and then used the salary she was paying him to take her on all-expense-paid “vacations across the world. Just granting the hearing gave Trump a precious two-month reprieve from a dicey trial over his attempt to pull off a mini-coup in the Peach State by yelling fraud in a squeaky-clean election. It’s hard for him to claim a witch hunt by the Deep State when Republican state officials lined up to testify about his hour-long call where he was haranguing them to overturn the will of the people. By now, a middle schooler can recite: “I just want to find 11,780 votes…”.

As a bonus, the trial within a trial came with a side dish of revenge. Usually, it’s Trump’s sex life on display, but with this hearing, he got to see his antagonist, District Attorney Willis, strip-mined with question after question about details of her love life. As an added dollop of schadenfreude, her father was in the courtroom to hear it. 

On the merits, the pretext for removing Willis was always strained, resting on when the relationship with Nathan Wade began, which was irrelevant, kickbacks to her in the form of trips, and who paid for what. It was established that Willis and Wade took vacations, sometimes with his mother and sister in tow, and they convincingly argued that they split the bill, except for Wade’s 50th birthday, which was a gift from her. A steward at a vineyard in Napa Valley saw Willis in the hot seat and called CNN to say he recognized her as a guest who paid the bill out of a roll of Benjamins. But far from a leap in salary that the DA benefitted from, Wade earned less than he had in private practice. If all of the defense allegations were true about what went on outside the courtroom between them, it didn’t have a bearing on what went on inside in a proceeding to determine whether Trump tried to steal votes. 

Thanks to the Supreme Court, Trump no longer has to buy his delay retail. He’s arguing wholesale that all of the actions against him have to be put on hold until the high court rules on whether he has presidential immunity. No argument the court did him a solid and no surprise, given that he named three justices, growing the conservative majority to a reliable 6-3 in his favor. In a stroke of good luck, the interests of the most senior justice, Clarence Thomas, an insurrectionist by marriage, are aligned with his. Thomas’s second wife, Ginni, a lawyer and political activist, was involved in trying to overturn the vote in 2020, choosing lawyers to argue Trump’s brief in court and confecting slates of electors to stop the January 6 election certification and throw it into the Republican House. 

An enduring problem on the playing field of politics is that Democrats are chumps playing by Marquis of Queensberry rules while Republicans take partisan advantage where they find it. In a current case as pertinent to the election as Trump’s four trials, why did Attorney General Merrick Garland choose Republican Ken Hur, a former Trump-appointed U.S. Attorney, as special counsel to investigate Biden’s handling of classified documents? Joe Biden took a fraction of the documents home that Trump did, and the transcript of Hur’s interview with the president shows him praising Biden’s testimony. But the cruel headline on Hur’s report erased everything else, that Biden is a doddering old man with such serious memory issues he couldn’t remember when his son Beau died. Republicans don’t care if Democrats think they play fair, which is why a Republican is investigating Hunter Biden right now. Apparently, all special counsels must be Republicans. 

A few hours after McAfee’s ruling, Wade resigned so Willis could stay, and the trial wouldn’t lose more time replacing her. It won’t be easy for Willis to go on. Jurors, in general, take cues from judges, the father and mother figure of the courtroom. Dad, in this case, harbors a visceral dislike of Willis, writing that an “odor of mendacity remains” over the circumstances of her relationship, that she throws around accusations of racism, and that he might institute a gag order on her given her emotional sermon at her church. 

It would try anyone’s soul to go through what Willis did, even harder knowing she gave her enemies the kindling that blew her up. Many legal experts think McAfee should not have allowed hearings—“a ticket to a circus,” Willis rightly called them—on a romance that affected nothing and has now ended. Georgia case law doesn’t call for a ban on attorneys in a relationship, even ones on opposite sides, but McAfee has. He defends his decision by finding an “appearance of impropriety,” meaning he couldn’t establish an actual one.

McAfee goes on to explain why he granted the defense motion: There was a “conflict in the evidence” about when the relationship started—that would be a conflict created by the defense. He adds that “it could not simply be ignored without endangering the criminally accused’s constitutional right to procedural due process.” How two people falling in love in this crazy world of ours could possibly violate the 14th Amendment awaits the parsing of our finest legal minds. Judge McAfee is not one of them.