"Optics are horrific": Judge DQs prosecutor from one target in Georgia fake-electors probe

(AP Photo/John Bazemore)

Lindsey Graham accused Fulton County DA Fani Willis of “playing politics” with her subpoena in an investigation of the 2020 election. Yesterday, a judge agreed with Graham in general about the Democrat DA’s bias, if not specifically in regard to the subpoena for Graham. A Fulton County judge blocked Willis from investigating a leading GOP candidate in an alleged “fake elector” scheme, because Willis not only endorsed his Democratic rival at the same time she launched the probe but also held a fundraiser for him a few months later:

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A judge ruled that Fulton County District Attorney Fani Willis and her staff cannot question Georgia’s Republican pick for lieutenant governor over his role in contesting the 2020 presidential election because Willis hosted a fundraiser for the nominee’s Democratic rival.

In a ruling issued Monday, Fulton Superior Court Judge Robert McBurney reasoned that Willis’s decision to endorse Charlie Bailey during his runoff in the Democratic primary for lieutenant governor “creates a plain — and actual and untenable — conflict” with her investigation into potential election fraud by state Sen. Burt Jones, the GOP nominee for the office.

“This choice — which the District attorney was within her rights as an elected official to make — has consequences,” the judge wrote.

Judge McBurney refused to disqualify Willis from the investigation of other targets in the fake-elector probe, but the damage has been done to Willis. The judge didn’t find an appearance of conflict but instead an actual and entirely avoidable conflict that Willis created on her own:

McBurney had been even more critical of Willis at a hearing last week. McBurney called the fundraiser a “what are you thinking” moment, and that her pursuit of publicity created other concerns as well:

But the judge was clearly troubled by it. “The optics are horrific,” he said, adding that it created at least an appearance problem. “If we are at a cocktail party and people are asking, ‘Do you think that this is a fair and balanced approach to things?’” he said, and continued, “Well, how do you explain this?” He also expressed concern that the district attorney, as “the legal adviser to the grand jury,” was “on national media almost nightly talking about this investigation.”

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That raises the broader question that Graham made last week. Willis has approached these investigations less as an unbiased enforcer of the law and more as a partisan warrior. Even if Willis did manage to avoid getting disqualified from the other targets in this probe, the investigation now looks very suspect — and you can bet that courts will look at Willis’ involvement with a good deal of skepticism when it comes to any criminal actions at this point.

Aaron Blake argues that this is one pitfall of having elected prosecutors, and it’s hardly the only example:

But it’s not the first time one of the prosecutors leading these other probes has run into criticism for political activity with regard to a subject of their investigations. New York Attorney General Letitia James (D) campaigned in 2018 by playing up her intent to scrutinize Trump, whose business is based in her state. After the New York Times’s massive investigation into Trump’s tax dodges was published in October of that year, she concluded in a statement: “Donald Trump’s days of defrauding Americans are coming to an end.” …

As the New York Times noted weeks later, this raised concerns among even some Trump critics that James could open herself up to charges of running a politicized investigation — and that it could even hurt the case if it ever came before a judge. Daniel Goldman, a lawyer who worked on Trump’s first impeachment, told the Times that James’s comments “give the appearance of an individualized political vendetta.”

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A judge agreed that James may have shown animus, but not disqualifying animus … so far:

A federal judge in May rejected a Trump lawsuit against James seeking to halt her civil investigation because of alleged political targeting. The judge said Trump didn’t prove that James acted in bad faith, as required, but indicated that her statements could suggest animus. “The fact that Defendant’s public statements reflect personal and/or political animus toward Plaintiffs is not, in and of itself, sufficient,” U.S. District Judge Brenda Sannes wrote.

That both prosecutors leading the charge in investigating Trump would sound and appear like Democrats isn’t totally surprising: They are Democrats. The United States has the worldwide distinction of making these offices elected positions in the vast majority of cases. The benefit is that they are more directly accountable to the people they’re charged with protecting; the drawback is that prosecutions could appear politicized — particularly when these same people take part in political campaigns that might touch on the people they investigate.

Agreed and agreed, but I’d still argue that electoral accountability — along with the potential for recalls when necessary — make it a manageable risk. Furthermore, most of these offices have traditionally been elected, so it’s not the election itself that seems to be the problem. It’s the election of activists with political axes to grind rather than professional prosecutors without the ideological (and personal) ambitions that create this problem.

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Willis is still nominally in charge of the rest of the Fulton County investigations, but politically speaking, it’s entirely poisoned. The stink of this political activism will reach all aspects of her work on this investigation. If Willis truly thinks this investigation is necessary for law and order to prevail, she should recuse herself from it and ask another agency to take it over. If she doesn’t, it’s a pretty good sign that Willis intended this as a political vendetta all along.

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