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Judge Scott McAfee ruled Friday that Fulton County District Attorney Fani Willis need not be disqualified from prosecuting the election-related RICO case against Donald Trump. But McAfee provided Republicans with plenty of ammo to target Willis in other ways if they so choose.
In that sense, McAfee’s ruling on the effort to disqualify Willis is reminiscent of special counsel Robert Hur’s report in the classified documents probe of President Joe Biden. As with Hur's conclusion not to bring charges against the president, McAfee ruled that insufficient evidence of legal impropriety was uncovered during the hearings concerning Willis’ relationship with Nathan Wade, a prosecutor on the case.
The defendants, McAfee said, “failed to meet their burden of proving that the District Attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor.”
But also like Hur, McAfee — a former member of the far-right Federalist Society who’s currently running in an election to keep his seat on the bench — made sure to get some jabs in. He said Willis can only remain on the case if Wade leaves (Wade stepped down Friday afternoon). In his ruling McAfee decided that the existence of Wade and Willis’ relationship rose to the level of a “significant appearance of impropriety” and that Willis’ failure to keep records of their shared expenses has “an odor of mendacity.” He then goes on to point out there are other ways beyond the cour, for people, including lawmakers, to punish Willis if they so choose. He wrote:
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.
That appears to be a nod to some of the mechanisms Republican lawmakers in Georgia — particularly those looking to shut down the Trump case — have already begun to leverage against Willis. The Georgia state Senate has already issued a subpoena probing the claims that prompted the disqualification hearing. Just this week, Gov. Brian Kemp signed a bill that revives a prosecutorial review panel that would investigate and discipline prosecutors for misconduct. McAfee’s ruling may be used as a pretext by lawmakers to derail Willis' prosecution. And I fully expect them to do so.
But I differ with those (including some on the left) who think Willis should step aside now in order to defuse these attacks and avoid the possibility of her case falling apart. That's because doing so means ceding ground to an ugly tradition of racism that Trump and his movement have brought to the fore: efforts to attack and undermine Black law professionals. Writer Paul Finkelman wrote about the history of such attacks in his 1993 essay on Black lawyers during the late-19th and early-20th centuries, “Not Only the Judges’ Robes Were Black: African-American Lawyers as Social Engineers.”
Finkelman argues that “virtually every Black attorney instigated a small social revolution merely by becoming a lawyer or walking into a courtroom.” And he said Black lawyers embodied the racist fears of equality that motivated Chief Justice Robert Taney’s determination that Black people weren't citizens. Finkelman wrote:
“While few in numbers, their participation in the legal system threatened the racial hierarchy Taney and many of his contemporaries held dear and symbolically undermined America’s racial status quo. Chief Justice Taney’s opinion can be seen as a reaction to the slow yet significant advances of free blacks; advances in which Black lawyers formed part of the vanguard.”
To me, that’s important context to understand the remarkable attempt to turn the tables on Willis over the past couple months. It bears repeating that all the talk about Willis’ potential conflict of interest doesn't fundamentally have a bearing on the facts in a case that's about a former president’s racist, fascist attempt to subvert democracy. Yet, the proceedings have been turned into an attack on the legitimacy of a Black prosecutor who, according to a white conservative judge, gives off an “appearance” and an “odor” of impropriety.
When you also consider that Trump has derided Willis as being “racist” against him (while making other misogynistic insinuations about her) and that Willis has reportedly faced racist death threats over this prosecution, 2024 feels awfully similar to 1924. If you consider the MAGA movement as the vitriolic response to expanding Black civic participation, suddenly the invective aimed at Willis makes more sense.
So while McAfee may not have removed Willis from the case on his own, his rhetorical attacks on the district attorney may provide MAGA lawmakers a potential boost in their push to do so.