How the Fani Willis Scandal Is Likely to Play Out

Plus: The probable new timeline for the federal January 6th case.

Fulton County District Attorney Fani Willis in court on November 21, 2023 in Atlanta, Georgia. (Photo by Dennis Byron-Pool/Getty Images)

LAST WEEK WAS A SAD ONE in the effort to hold Donald Trump accountable—for three reasons. First, lawyers working under Fulton County District Attorney Fani Willis found themselves defending her dalliance with a colleague—a top prosecutor in the racketeering case against Trump and eighteen co-defendants. Second, the Court of Appeals for the D.C. Circuit failed to produce the much-anticipated ruling on whether presidents have absolute immunity for crimes committed in office. And third, Judge Tanya Chutkan pushed back Trump’s trial date in the federal January 6th prosecution; originally scheduled for March 4, the start date has now been indefinitely postponed.

The sideshows and delays are disheartening. Trump seems undeservedly to get break after break, while the rule of law remains thwarted and American democracy hangs by a thread. But none of these developments means he’s off the hook. Despair at any of last week’s setbacks would be an overreaction.

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ALTHOUGH FANI WILLIS’S RELATIONSHIP with the man she hired for such an important case shows exceedingly poor judgment, it’s unlikely to get her removed from the case—which won’t conclude before the November 4 presidential election anyway. On Friday, Willis filed her 176-page brief in opposition to a motion by one of Trump’s co-defendants, Michael Roman, which Trump and another co-defendant, Robert Cheeley, joined, asking the judge to dismiss and disqualify Willis from the case. A hearing on the motion is scheduled for February 15.

If the defendants succeed with their motion, the next step would be appointment of a substitute prosecutor, which under Georgia law is the responsibility of the executive director of the state’s Prosecuting Attorneys’ Council, a newly created, “Republican-backed” body consisting of nine members who could certainly take their time identifying a replacement. While that will delay the case, it won’t make a difference in terms of the electoral calendar: Despite already securing multiple guilty pleas, Willis said last November that she doesn’t expect the case to reach a verdict before the election.

Willis should win the motion on the merits. Although district attorneys like Willis are elected in Georgia, private attorneys can be appointed to act as prosecutors. And according to Willis’s brief, Georgia law requires “an actual conflict of interest” to disqualify a prosecutor, which occurs, for example, if a prosecutor previously represented a criminal defendant as a private attorney, or could be called as a fact witness in the case being prosecuted, or has a relationship with a victim of the crime. In this case, the intimate “personal relationship” between Willis and Special Prosecutor Nathan Wade—to which she admits in her filing—came to light in connection with his divorce proceedings and does not involve any actual conflict of interest bearing on Trump’s criminal case. Willis asserts that, although she and Wade were already friends, the “personal” part of their relationship didn’t arise until after she hired him to be on the Trump prosecution team, and that “Defendants offer no support for their insistence that the exercise of any prosecutorial discretion (i.e., any charging decision or plea recommendation) in this case was impacted by any personal relationship.” She rightly notes that the actions of Trump, Roman, and Cheeley were “designed to seek publicity instead of a meritorious legal remedy.”

For Trump, Roman, and Cheeley to win this motion, the judge would have to find that the appearance of impropriety is so bad that the entire prosecution must be derailed. Although such an outcome is unlikely, Willis, Wade, and seven other lawyers in the Office of the Fulton County District Attorney—who are all being paid by Georgia taxpayers to deal with this spectacle—have had to waste time and energy responding to this distraction, time and energy that could have been better spent working on the prosecution. At the very least, Willis’s decision to prosecute Trump was good enough reason to keep her D.A. relationships strictly professional.

According to the Washington Post, Roman has made “a career as a political operative and investigator, including for the conservative Koch brothers’ network,” even hiring former CIA analysts and “arrang[ing] for drones to surveil campaign rallies.” In this instance, he successfully, if temporarily, took the public eye off of the real issue: Willis’s indictment of Trump, through a grand jury, on racketeering, conspiracy, and other charges relating to interference in the 2020 election.

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THE D.C. CIRCUIT’S LONG DELAY in ruling on Trump’s immunity bid is puzzling, but he’ll still lose. The appeals court heard oral argument nearly a month ago on Trump’s motion to dismiss the four-count indictment against him relating to his attempt to overturn the 2020 election. His claim that he is completely immune from criminal liability for actions taken while president is absurd. The Supreme Court has already rejected claims of absolute immunity for presidents multiple times, including in relation to alleged wrongdoing by Presidents Richard Nixon (Watergate), Bill Clinton (sexual harassment while governor of Arkansas), and Trump himself (in connection with Congress’s request for his accounting records).

Moreover, a unanimous panel of the D.C. Circuit ruled last year that Trump isn’t absolutely immune from civil liability for his actions on January 6th. Why this court appears to be stalling now is hard to tell. But regardless of its decision, the case will likely go to the Supreme Court anyway, which could quickly affirm the D.C. Circuit—although if the high court does proceed to briefing and argument, it should have plenty of time to rule before it recesses in June.

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ALTHOUGH THE TRIAL DATE for the federal January 6th case is now off, there remains a strong likelihood that the case will go to a jury before Election Day. Because the D.C. Circuit is still sitting with the immunity question, Judge Chutkan canceled the March 4 trial date—for now. But that doesn’t mean the trial will be delayed past November. As noted above, the Supreme Court could accept an appeal of whatever the D.C. Circuit decides (which isn’t itself inevitable) and issue a decision in June. While an even more drawn-out scenario is possible—the D.C. Circuit judges might do nothing for months despite the immense and understandable public pressure to rule soon—assuming that the issue is settled by June, the trial would presumably start in the late summer or early fall. Unless Attorney General Merrick Garland does the unthinkable and postpones the trial at that point in deference to the November election, the country could still get a verdict before voters go to the polls.

Meanwhile, a whopping one-third of Iowa Republican caucusgoers reported that they’d dump Trump if he’s convicted of a felony. All American voters—including MAGA voters—should be given the courtesy of knowing before they vote whether their candidate was found guilty of felonies by a jury of his peers.