As we all know, Fulton County, Georgia, District Attorney Fani Willis charged former President Donald Trump with 13 felonies that she says were part of a large conspiracy to undermine the 2020 presidential election results in a state Joe Biden won. But now that she’s been accused of a conflict of interest, Willis herself may now be the biggest threat to the case against Trump.
Now that she’s been accused of a conflict of interest, Willis herself may now be the biggest threat to the case against Trump.
At a hearing Thursday into whether Willis must be disqualified from the case, a defiant Willis took the stand to lambaste the accusations that she acted inappropriately and to tell her side of the story, arguing that any allegation of misconduct against her amounts to baseless character assassination. Willis had already acknowledged that she’s had a personal relationship with Nathan Wade, the special counsel she appointed to the case involving Trump, but she’s argued that their relationship doesn’t give rise to a legal conflict of interest.
For those who generally have faith in Willis, she was understandably enraged and gave a master class in how to defend oneself in a public setting. For others, her protestations were over the top. Even so, the fact that there was even a hearing into Willis and whether she has a financial conflict of interest in the case was a windfall for Trump. Obviously, it would be an enormous boon for him if Willis or the entire Fulton County district attorney’s office is disqualified.
But even if neither Willis nor her office is disqualified and her office is allowed to continue prosecuting this case, the damage done to the public’s perception of the case is incontrovertible.
Thursday’s hearing took all the attention away from the egregious, and perhaps illegal, actions that Trump took trying to try to hold on to power. That’s a problem, because the case that Willis persuaded a grand jury to bring against Trump accuses him and 18 other people of conspiring together to rob Georgia voters of their choice of president. The indictment accuses Trump and his co-defendants of trying to take the election’s results and Georgia’s Electoral College votes away from Biden.
But the more we talk, in or out of court, about whether Willis has a financial conflict of interest in this case, the better it is for Trump, and the stronger will be his argument that Willis is unfairly out to get him. As we all know, Trump has argued, for years, that he is the victim of anybody who seeks to investigate him. He won’t care if it’s fair or not; this hearing, and questions about Willis’ conduct, will be Exhibit A for Trump’s arguments that the criminal case against him is based on Willis’ personal motives, not the actions he took to undermine the presidential election.
Even if Willis and her whole office are disqualified, Trump could still be prosecuted. However, bringing in prosecutors from another jurisdiction to prosecute the case could cause enough delay to push the beginning of this trial past the election. That’s exactly what Trump wants. If he wins the November election, then he can, and will, argue that he can’t be subject to a state criminal prosecution because it will interfere with his abilities to function as the chief executive of the United States. Simply put, a delay is a win for Trump. And Willis has possibly handed Trump not just a delay, but also a way to question the entire strategy behind her prosecution.
The more we talk about whether Willis possesses a financial conflict of interest, the better it is for Trump, and the stronger will be his argument that Willis is unfairly out to get him.
The broad question before the court isn’t one any prosecutor wants to face, and a defiant Willis made that clear during her testimony. Does the personal relationship between Willis and Wade give rise to a conflict of interest that requires her to be disqualified? Contrary to Willis’ claim that the relationship began after she hired Wade for the Trump case, witnesses for Trump co-defendant Michael Roman allege that the relationship began before Willis selected Wade as the special prosecutor to work on the case. The argument for disqualification is that Willis financially benefited from her decision to appoint Wade because he bills the state for his time and when he gets paid, she benefits. The argument says Wade used the money he earned to pay for, among other things, personal trips for the two of them.
Willis and Wade have argued that Willis paid Wade back for roughly half of the cost of the personal trips that they took together and that, therefore, Wade’s position as special counsel on the case didn’t give rise to a financial conflict of interest for Willis. But, again, regardless of the outcome, the fact that there was a hearing at all is a win for Team Trump. Trump’s legal defense and, more to the point, his political campaign could hardly ask for a happier turn of events. But the allegations against Willis have no bearing on whether Trump broke Georgia law as he allegedly tried to overturn the 2020 election. Trump’s actions created an existential threat to our democracy and may have been illegal. That’s the most important thing to remember. Still, the public’s perception of the neutrality of the criminal justice system matters. That’s why conflict of interest codes guard against not just actual conflicts of interest but also apparent conflicts of interest. Fairly or not, Willis, by virtue of her decision to appoint Wade and date him, helped put the effort to hold Trump accountable into question.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
