Are Fani Willis and Nathan Wade Guilty of Prosecutorial Misconduct Against President Trump?

Fani Willis and Nathan Wade have violated the most fundamental rights that belong not just to President Trump but to the American people.   Prosecutorial Misconduct offends our very basic principles of justice.  Prosecutorial misconduct undermines the Constitution and the justice system.  If the Georgia prosecution were directed to anyone other than President Trump there would universal condemnation. Radical left wing defense attorneys should be in lockstep with full blown MAGA attorneys in condemning the conduct of the Georgia prosecutors.  . Here is why.

For decades criminal defense lawyers from all sides of the political aisle have sought to eliminate the unequal application of the law. Self interest by prosecutors, political agendas by prosecutors and corruption by prosecutors are opposed again on both sides of the aisle.  A lawyer representing the government in the criminal context has a heightened ethical obligation that extends beyond just representing the narrow interests of her most direct client; she also must endeavor to “do justice.” See, e.g., Model Rules of Professional Conduct R. 3.8 (American Bar Association 2017)

In more detail here is what the American Bar Association says about prosecutorial ethics.

Standard 3-1.2 Functions and Duties of the Prosecutor

(a) The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.

(b) The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

There is a very high level of compliance with these standards among prosecutors.  The conduct in the Georgia case is highly unusual.  Here is the basic outline of what took place.

On January 8, 2024, Ashleigh Merchant a lawyer representing a former campaign official for President Trump Michael Roman, filed a motion detailing how Fulton County District Attorney Fani Willis hired her boyfriend (or former boyfriend) Nathan Wade to be a special prosecutor against President Trump and his co-defendants. He had no serious criminal defense experience and objectively it seemed very much in his interest to prosecute and convict President Trump.

It is basic law that a prosecutor must recuse him/her self if there is a personal motive to convict a defendant, as this creates a conflict of interest. According to Georgia law, a conflict of interest arises when a prosecutor has a personal interest or stake in the defendant's conviction (Head v. State, 253 Ga.App. 757 (2002)). This principle is supported by the case of Whitworth v. State, where it was noted that a disqualifying conflict of interest can occur if a prosecutor has a personal interest in the case. (Whitworth v. State, 275 Ga.App. 790 (2005))

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.

This is critical because a prosecutor at any time can dismiss a case. An ethical prosecutor will not prosecute a case that is not valid.

However, if Willis appointed her bed partner Nathan Wade to a job for which he was clearly unqualified how can we expect him to act ethically in discharging his duties?

Here is an example of how his self interest in winning and becoming rich and famous might taint his sacred role to uphold justice. In the Trump Georgia case, four defendants pleaded guilty to some charges and agreed to cooperate with the prosecution. This is critical.

If the deal is made with Nathan Wade he has a personal interest in having the people testify against the President. Ethically a real prosecutor will insist and ensure that the witnesses testify honestly. This writer has seen many times that a prosecutor has chosen not to call a favorable witness because he lacked confidence in the honesty of that witness.

The White House Potential Connection

The other major point (and we raised this in an earlier blog) is that any coordination between the White House and this prosecutor has the potential of being unethical.  The Attorney General can interact with State prosecutors on matters of common interest.  However, the Executive Branch, except perhaps in matters of national security, would have no legitimate reason to interact with a state prosecutor.  This is being reviewed.  Recently, Judge Dabney L. Friedrich of the U.S. District Court for the District of Columbia is not a Trump judicial appointee and she is a tremendous legal scholar. She ruled that the Department of Justice must provide information on communications between Special Counsel Jack Smith and District Attorney Fani Willis.  This is a very important issue.  There are innocent explanations but in the absence of an explanation there is at least a legitimate suspicion of collusion.  The public is entitiled to know whether this is a tempest in teapot or something more.

Corrupt is as Corrupt Does

In the Georgia case the very appointment of Wade was dishonest as his qualification of being a bedfellow is not a qualification either technically or ethically to prosecute.

Wade has a corrupt incentive to make deals with people who have extreme positions and reject deals with those who are less helpful. He may ignore contradictions and inconsistencies in testimony. Even worse, people may be encouraged to fabricate statements to satisfy his criteria to qualify for a “good deal” in exchange for testimony. This is close to an invitation to commit perjury which in Georgia is prosecutorial misconduct to invite perjury. See: Taylor v. State, 59 Ga.App. 1 (1938), Bell v. State, 5 Ga.App. 701 (1909).

Willis and her supporters will argue that the case was valid and there is no specific evidence of harm to the President in how the case has been prosecuted. This misses the point. A prosecutor is the representative of the PEOPLE. The People do not favor conviction or acquittal. The People favor a just and honest process as well as a just and honest verdict.  We cannot trust a single thing said or done by a prosecutor who is using the power of the state to line his own pockets and bring fame and political fortune to hmiself and his paramour.

The Georgia prosecutors should be punished for their gross misconduct.  They do not represent 99.9% of the prosecutors in this country and they do not represent the People of the State of Georgia.

We first wrote about this prosecutorial misconduct in 2024 and that post is still valid.  

We end with ABA Rule 3-1.7:

(f) The prosecutor should not permit the prosecutor’s professional judgment or obligations to be affected by the prosecutor’s personal, political, financial, professional, business, property, or other interests or relationships. A prosecutor should not allow interests in personal advancement or aggrandizement to affect judgments regarding what is in the best interests of justice in any case.