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The Trump Georgia Criminal Case - How Bad is the Willis Sex Scandal?

Bar Journal article front page and some text on the Brady case and a photo of Dan Horowitz
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The Trump Georgia Criminal Case - How Bad is the Prosecution Sex Scandal?

The Issue of Sexual Involvement

The prosecution of Donald Trump by the State of Georgia has exploded as the sex scandal involving District Attorney Fani Willis has exploded. The headlines allege that Fulton County District Attorney Fani Willis had an “improper relationship” or the headlines read “Fani Willis Sex Scandal. It all arises from her appointment of a truly unqualified outside the office special prosecutor to be the lead prosecutor on the case. Why was he appointed? The implication is that his sexual relationship with Fani Willis was the sole motivator for his appointment. If you scan the web, the boyfriend, Nathan Wade had criminal law experience on very simple and low level cases. His academic achievements are invisible and his multiple failed attempts to be elected as a judge are notable.

However, do not be deceived. Their sexual relationship may be a motive but it is not the basis for the defense motion to dump the prosecutor and prosecution. The actual accusation of wrongdoing was filed by Trump co-defendant Michael A. Roman. The motion is truly a superb piece of legal work and the attorney who filed it, Ashleigh B. Merchant deserves significant recognition.

The Motion Does Not Focus on the Sex

The motion does not focus on the “illicit affair” concept. Instead it focuses on the role of a prosecutor to make objective decisions and to represent the people and not her own interests. When and if this breaks down, the system is no longer functioning as it should. Attorney Merchant alleged that this was structural error which is error that goes to the very core of a case and renders it unfair. It is as if the referee at a sporting event was proven corrupt. Does one go back and look at the game to see if any calls were unfair? (If so, that is the equivalent in the law to a violation of Due Process should some unfairness be uncovered.) Or is this type of violation so egregious that the entire event is presumed to be unfair and no proof of actual harm is needed? That is structural error.

The Factual Arguments for Dismissal

The factual argument is that Fani Willis appointed her unqualified boyfriend and that his large billings benefit her personally. This is structural error because the public depends on the objective judgments of prosecutors to do what is “right” and in the “public interest”.

First, both have acquired a personal financial interest in Mr. Roman’s conviction. Wade has personally and financially benefitted from his personal relationship with Willis since he has received lucrative amounts under his continued contracts with Willis. He will continue to be incentivized to prosecute this case based on his personal and financial motives, so he has acquired a unique and personal interest or stake in Mr. Roman’s continued prosecution. That is, he is motivated to prosecute Mr. Roman for as long as possible because he will continue to make exorbitant sums of money.

It is not the “illicit affair” that is the issue, the affair is simply the starting point to show personal interest that clouds objective judgments. In the case of Mr. Roman a Grand Jury did not indict him. He was hand selected as a defendant by the prosecution. While Grand Jury’s are known to do whatever a prosecutor advises, a Grand Jury can provide at least a modicum of oversight - something lacking with Mr. Roman. Ms. Willis’ interest is alleged to be mostly indirect. Having her paramour be famous and successful benefits her. It doesn’t hurt if he makes a lot of money either.

Ethical Violations Alleged

The motion also cites a violation of one of the Georgia rules of professional conduct which tracks the American Bar Association (ABA) rule.

Under Rule 1.7, Willis and Wade both cannot continue to represent the State of Georgia or Fulton County in this matter because there is a “significant risk that the [Willis and Wade’s] own interests or [Willis’] duties . .. [Wade] will materially and adversely affect the representation….” (See id)

Many other ethical violations and violations of ethics rules were detailed in the motion.

Federal Arguments (Structural Error & Due Process)

What you may see more of as the legal arguments continue is a focus on the violation of federal due process of law. In the case Snyder v. Massachusetts 291 U.S. 97, 116 (1934) the U.S. Supreme Court stated that fairness is an active concept. Each case has to be individually looked at for fundamental fairness.

"Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others."

This rule was meant to apply not just to criminal cases but all legal proceedings. In the context of a criminal case the Supreme Court sets out the concept of unfairness (and the burden of a defendant to demonstrate the harm).

"[A]s applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."
Lisenba v. California, 314 U.S. 219, 236 (1941)

The Scope of Investigation into Willis & Wade's Bias

So if this is not such fundamental error as to be “structural” the defense will have to show harm due to this improper relationship.

While this places a burden on the defense it also opens the doors to a major investigation into the conduct of Willis and Wade. Here are some questions that are fair.

A. Did Willis and/or Wade ever meet with anyone associated with the Biden legal team?
1. What was said?
2. Why was there a meeting?

B. Did Willis and/or Wade ever meet with anyone in the U.S. Attorney’s office associated
with the federal prosecution? And again, why and what was said?

C. What e-mails and texts have been exchanged between Willis and Wade about this
case? Did they discuss naming many defendants to increase the expense and hence
increase legal fees? Did they discuss the effect of a conviction of Donald Trump on their
future careers?

And who gets to look at these texts and e-mails to see what should be produced and what is protected by attorney-client or work product privilege? Should the Court appoint a special master
such as a retired judge to make the review?

What about deals made with cooperating defendants? Were some of their plea deals left open so that their ultimate penalty (if any) depended upon whether the prosecutor found their testimony to be complete and truthful? If so, does a tainted prosecutor have an incentive to demand more helpful testimony and less truthful testimony?

Ultimately the State Bar of Georgia ethical violations are likely enough to recuse (fire) Willis and Wade. It is less clear that the entire prosecution can be jettisoned. The remaining, untainted prosecutors can probably continue the case. But maybe not.

Fundamental Error (Structural Error) - A Complex Legal Concept

There is that fundamental right to a (legally) disinterested prosecutor. That right belongs to the defendant but also the public. We grant authority to public officials but we count on them to act lawfully and ethically. The U.S. Supreme Court in the case, Young v. United States ex rel. Vuitton et Fils S.A. 481 U.S. 787 (1987) focused on the prosecutor’s lack of objectivity because he was an “interested party”. When that happens the error is “fundamental and pervasive.” Id. at 809–10 (plurality opinion). If that is the case with Georgia v. Trump then any conviction would have to be reversed without regard to the facts or circumstances of a particular case.” Young v. U.S. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). To remedy this it might be necessary to dismiss the case and start over with a clean slate.

All said as Ollie said to Laurel in “Another Fine Mess” (1930) “Well, here's another nice mess you've gotten me into”. Without a doubt, the Georgia scandal has created a huge legal mess from which the prosecution may not recovery.

The Trump Indictment

The Motion to Dismiss & Disqualify (Georgia v. Trump)

Excellent Blog Explaining Structural Error (Lawyers Should Read This!)

Conviction Reversed on Structural Type Error (Handled by Daniel Horowitz)

Daniel Horowitz is a State Bar of California Certified Criminal Defense Specialist (Board of Legal Specialization).  He is a noted trial lawyer and a frequent legal commentator on CNN, MSNBC and the Nancy Grace show.