BREAKING: McAfee Splits the Fani Baby?

Alyssa Pointer/Pool Photo via AP

Profiles in Courage, it ain't. 

Judge Scott McAfee has just released his much-anticipated ruling on the disqualification motion involving Fani Willis, Nathan Wade, and the prosecution of Donald Trump et al in Fulton County, Georgia. Faced with an absurd set of explanations, courtroom deceit, and obvious political grandstanding from Wills and Wade, McAfee decided to ... leave the decision to her:

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An Atlanta judge on Friday ruled that Fani T. Willis, the Fulton Country district attorney, could continue leading the prosecution of former President Donald J. Trump and his allies in Georgia, but only if her former romantic partner, Nathan J. Wade, withdraws as the lead prosecutor of the case.

The ruling by Judge Scott McAfee of Fulton Superior Court cut a middle path between removing Ms. Willis for a conflict of interest, which defense lawyers had sought, and her full vindication, with the judge sharply criticizing her behavior.

Read the order at Fox 5 Atlanta. McAfee tries to eat his cake and have it too when it comes to Fani Willis. On page 9 of his ruling, McAfee calls the relationship "a tremendous lapse in judgment" and Willis' courtroom behavior "unprofessional," before leaving it up to her whether she wants to keep the case:

Without sufficient evidence that the District Attorney acquired a personal stake in the prosecution, or that her financial arrangements had any impact on the case, the Defendants’ claims of an actual conflict must be denied. This finding is by no means an indication that the Court condones this tremendous lapse in judgment or the unprofessional manner of the District Attorney’s testimony during the evidentiary hearing. Rather, it is the undersigned’s opinion thatGeorgia law does not permit the finding of an actual conflict for simply making bad choices – even repeatedly - and it is the trial court’s duty to confine itself to the relevant issues and applicable law properly brought before it. 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. But those are not the issues determinative to the Defendants’ motions alleging an actual conflict.

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And even more hilariously, McAfee then declares that Willis has created at least "an appearance of impropriety" that must be ameliorated, and that Wade clearly intended to deceive the divorce court about the nature of his relationship with Willis -- presumably with Willis' help, since she refused a subpoena service and threatened to prosecute Joycelyn Wade for obstruction if she pursued the subpoena. McAfee then goes on to declare Terrence Bradley a liar, and that he's not the only one:

However, an odor of mendacity remains. The Court is not under an obligation to ferret out every instance of potential dishonesty from each witness or defendant ever presented in open court. Such an expectation would mean an end to the efficient disposition of criminal and civil proceedings. Yet reasonable questions about whether the District Attorney and her hand-selected lead SADA testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it.

So Willis acted unprofessionally in the courtroom and contributed to an "odor of mendacity," establishing "an appearance of impropriety" ... but McAfee wants to let Willis resolve the situation because she's just so darned trustworthy, or something.

That's even more risible considering Willis' speech at a church in which she accused the defense attorneys of racism for hiring her boyfriend. McAfee claims that Willis' constant accusation of racism aimed broadly at the defense is "legally improper," but still chooses to do literally nothing about it. 

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Curtis Houck sums it up nicely:

The problem with splitting the baby is that the baby dies. That seems to be what happened here in McAfee's attempt to be Solomonic. If he wanted Fani Willis to remain in charge of the case, he needed to exonerate her from all of these issues. Instead, he admitted what everyone could see on live television, and then refused to act on it.

That sets up an appeal, of course, based on the factual record that McAfee established in this order. And one has to wonder whether that is McAfee's intent -- to punt this to the state appellate court rather than risk the ire of Fulton County voters by disqualifying Willis. Declare her guilty, fail to act, and let the next set of judges with more political insulation deal with the issue themselves. Or maybe even more quickly, letting the Georgia State Bar and the Attorney General deal with the "odor of mendacity" and pre-empt the whole issue by suspending Willis' law license. 

Like I said ... Profiles in Courage this ain't. 

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