Trump: Fani Willis's Racial Claims Requires Dismissal
Willis violated at least two Georgia ethics rules.
Today, lawyers for Donald Trump filed this motion, which adopted the pending motion to dismiss by co-defendant Michael Roman – and which provided a new basis for the recusal of Fulton County District Attorney Fani Willis, if not the outright dismissal of the case.
Roman’s motion, filed January 8, contained the explosive allegation that Willis was having an improper and unethical affair with the subordinate she appointed, Special Prosecutor Nathan Wade. This was improper for a number of reasons: it showed favoritism to her unqualified affair partner (Wade is still married), it gave the appearance of favoritism, and it provided a financial incentive for the investigation and prosecution of Trump, et al., as Willis herself benefit financially from Wade’s salary in the form of domestic and international travel, cruises, etc.
After Roman’s motion was filed, Willis delivered an inflammatory speech at Big Bethel AME Church in Atlanta – during a tribute to Rev. Martin Luther King Jr. – in which she accused the defendants of playing the “race card” and targeting Willis and Wade specifically for being black, observing that the white special prosecutors she had appointed were never criticized. (It goes without saying that Willis isn’t accused of adultery with those prosecutors.)
As you see from the video, these were racially charged accusations which elicited emotional and approving responses from church attendees. Willis’s remarks, shared through YouTube and local and national news, have undoubtedly reached many in the Fulton County jury pool – a majority Democrat jurisdiction that elected Willis as their District Attorney.
Through her statements, Willis has transformed this case from an egregious RICO prosecution to one which the defendants, by their lawyers, are attacking the peoples’ elected representative based on the color of her skin. The prosecution has tainted this case with race, stoking the worst kind of racial division through appeals to God.
And, as Trump’s attorneys allege, she has also violated Georgia’s lawyer ethics rules:
The DA’s self-serving comments came with the added, sought after, benefit of garnering racially based sympathy for her self-inflicted quagmire. That being so, the DA’s comments directly ran afoul of Georgia Rules of Professional Conduct, Rule 3.8 Special Responsibilities of a Prosecutor, subsection (g): The prosecutor in a criminal case shall “… refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” The maximum penalty for a violation of Rule 3.8 is disbarment.
That’s not the only ethical rule Willis violated. She has also ran afoul of Rule 3.6, which states:
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a person would reasonably believe to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Trump makes a strong case that Willis broke these rules, and let’s assume for the purposes of this exercise that the Judge agrees. This gets us to the question of the remedy. In other words, what is the appropriate action for the Judge to take?
Disbarment isn’t a remedy available to the trial court – that would go through Georgia’s lawyer discipline process – so we can rule that out. The Judge may give her a slap on the wrist, warning her to refrain from any more public comments about the case. The Judge might be open to changing venue, though that has not yet been requested by any of the parties.
Or, the Judge may grant the remedy requested by Trump and dismiss the case. Based on the recent history of this Judge, we don’t think that’s a probable outcome.
Yet we also can’t conclude that it is an impossibility. Dismissal of an indictment for this type of prosecutorial misconduct (without considering the conflict of interest presented by the Wade-Willis relationship) is, admittedly, rare. Courts in Georgia have long held that the dismissal of an indictment is an “extreme remedy.”
But rarely have courts encountered such prejudicial public statements by a prosecutor, ones which poisons prospective jurors by injecting racial animus into a case. It’s not a stretch to argue that Willis’s statements would deprive the defendants’ of their Constitutional rights to due process and to a fair trial. The accused, after all, “is entitled to be tried by a panel of impartial, indifferent jurors.”1
As the Supreme Court has observed:
Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by "impartial" jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.2
We hope the defendants elaborate on the points we raise. Trump’s motion focuses on ethical violations - but there are strong Constitutional arguments that need to be presented to the court. Even if the Judge declines to dismiss, he might agree with a change of venue. And that would be a huge victory for the defense.
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Randolph v. California, 380 F.3d 1133, 1142 (9th Cir. 2004).
Gentile v. State Bar of Nevada, 501 US 1030, 1081 (1991).