Judge Scott McAfee ruled on Friday morning that Fulton County District Attorney Fani Willis is not disqualified from prosecuting the cases against former President Donald Trump and his co-defendants, but either she and her entire office or special prosecutor Nathan Wade must step down from the case. The decision forced Wade’s resignation Friday afternoon.
It also puts Judge McAfee in the same territory as Judge Lance Ito—when it comes to losing control of a high-profile case.
Lance Ito, you may recall, was the respected Los Angeles state court judge who presided over what was known in the mid-1990s as the “Trial of the Century”—the murder case against O.J. Simpson for the deaths of Nicole Brown Simpson and Ronald Goldman. Ito allowed the trial to be televised and, in the glare of the publicity, proceeded to melt into a meandering and indecisive jurist who allowed the trial to drag on for almost an entire year before resulting in an acquittal.
Judge McAfee, at age 35, is even younger than Ito was during the O.J. trial and has only been on the bench a year. His inexperience, and perhaps his mindset as a white male Republican member of the Federalist Society, have begun to show.
McAfee gradually lost control of the disqualification hearing process. He allowed the hearing to become an unfettered spectacle of smear, allowing Trump lawyers to even disparage Willis’ father with leering references to him as “daddy” and comparing Willis and Wade to love-struck teenagers texting.
Worse, at the end of all that, McAfee produced a poorly written, poorly reasoned ruling. McAfee had promised the prosecution and defense that he would have his decision out today and that “no ruling of mine is ever going to be based on politics. I’m going to be following the law as best I understand it.”
Of those three promises, the only one he fulfilled was he got the ruling out on time.
McAfee failed to follow the law which requires disqualification if there is an actual conflict of interest. McAfee found such a conflict was lacking in this case. If he had followed the law, he would have determined that since there was no actual conflict of interest—and the law was unclear about when a prosecutor may be disqualified for the mere appearance of impropriety—then there was nothing further for him to rule upon.
Instead, he made up law to impose upon Willis—and her entire office—the Hobson’s Choice of either recusing or having Wade step down.
Like his poor handling of the disqualification hearing, McAfee’s written ruling reaches illogical conclusions.
He asserts that Willis and Wade paying for each other’s meal was an “unusual” “reimbursement practice” and the lack of “documentary corroboration understandably concerning,” which is a ridiculous observation to make about co-workers—whether romantically involved or not—eating together and splitting tabs. It’s particularly irrelevant because McAfee then concludes that no evidence contradicts Willis and Wade on this point. Yet later in his ruling, he criticizes the “regular and loose exchange of money” as creating the possibility that Willis benefited from her relationship with Wade, despite concluding that she did not.
The judge paternalistically scolded Willis for “bad choices,” as though he was sitting in judgment of her personal life rather than whether her personal life had any prejudicial effect on the defendants. The opinion is so poorly organized that I had to read it twice to find his actual conclusion about either Willis or Wade leaving the case—which is buried on page 17 of the 23-page opinion, at the end of another wandering paragraph.
But the most offensive part of the opinion is Judge McAfee’s pompous characterization of the matter as troubling to him because “an odor of mendacity remains.” Mendacity means not telling the truth, and as a judge, he decides whether Willis and Wade were lying or not. It is the height of judicial impropriety to decline to find that they lied but then impugn their character by saying there is an “odor” about their truthfulness.
McAfee, in his ruling, also had the arrogance or ignorance to criticize Willis for referencing race in her remarks at a church gathering where she defended herself.
In truth, the real odor in this case is the smell of how Trump and his co-defendants have used misogynistic and racist tropes. Trump and his followers have long weaponized misogyny and racism in politics. Today, thanks to Judge McAfee, they succeeded at using them as legal weapons as well.
