Experts: Fani Willis' conduct just dealt a "terrible hit" to "credibility" of Trump RICO case

Fani Willis Alex Slitz-Pool/Getty Images
Fani Willis Alex Slitz-Pool/Getty Images
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The "train is coming" in the Fulton County, Ga. prosecution of Donald Trump and his 14-co-defendants, District Attorney Fani Willis told CNN over the weekend.

Willis, who narrowly escaped disqualification in the former president's election subversion case following hearings over the romantic relationship she had with her former lead prosecutor, told the outlet that she continued to prepare for and work on the case during the two months of related court action and said that the disqualification effort did not slow her down.

“While that was going on, we were writing responsive briefs, we were still doing the case in a way that it needed to be done. I don’t feel like we’ve been slowed down at all. I do think there are efforts to slow down this train, but the train is coming,” Willis said Saturday at an Atlanta-area Easter event.

“We’re not going to miss or skip a beat because of all the noise or distraction on one case. We’re going to continue to do our work,” she added.

While Willis' weekend remarks are unlikely to cause any hubbub in the case over Trump and his co-defendants alleged efforts to overturn his 2020 electoral defeat, the district attorney "should not" be making them, Atlanta defense attorney Andrew Fleischman told Salon.

Prosecutors announcing at the outset of a case who they're indicting, the charges being brought and why is "fine," he explained. But they should not make public statements that have "no legitimate law enforcement purpose even in the context of a political campaign."

"They strengthen arguments for gag orders and disqualification, and they harm the public's trust that this trial is about holding people accountable for crimes they have committed, rather than as part of an overall political strategy," Fleischman said.

The district attorney's comments to CNN primarily sounded like "campaign remarks" that "were really addressed to an audience of voters for the upcoming primary and general election," Georgia State University law professor Clark Cunningham told Salon, noting that Willis is up for re-election in Fulton County this year.

The Georgia prosecutor told the outlet that she doesn't feel that she needs to restore her reputation among Fulton County residents, adding: "I’m not embarrassed by anything I’ve done. I guess my greatest crime is I had a relationship with a man, but that’s not something I find embarrassing in any way. And I know that I have not done anything that’s illegal.”

Going forward, she said, the attention should be on "the charges, the facts and the law" and leaving "all the drama behind.”

“I am not a perfect human being, but what I am is a hard-working human being, and a human being that loves the community I serve and who understands this seat does not belong to me, it belongs to the people," Willis later added, telling CNN she feels "more loved" by the community following the intense scrutiny over her relationship with ex-special prosecutor Nathan Wade. "And as long as I’m here, I’m going to try to do the job in a way that’s honorable."

Asked whether she would consider a plea deal with the former president or any of the remaining co-defendants after reaching guilty pleas with four people originally charged in the indictment, Willis told CNN she is "always open-minded and reasonable" and that her office "will listen to those explanations.”

She also emphasized she will now oversee and negotiate any potential plea deals following Wade's resignation, adding, “I hope that was good for everyone.”

That nod from Willis regarding any future guilty pleas comes with "the obvious implication" that the "'price' of a plea deal has gone up for defendants who sought to disqualify" her, former federal prosecutor Renato Mariotti said on X.

Fleischman noted that remark in particular appears to butt up against a Georgia prosecutorial ethics rule that forbids prosecutors from "making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."

"Saying that the 'train is coming' and implying that the defendants will now get less favorable plea deals because of a motion that was filed seems like it is meant to heighten condemnation of the accused," he said.

Even then, Fleischman and Cunningham agreed that Willis' Saturday comments aren't likely to "have any effect" on the future of the case.

The statements do, however, increase the likelihood of the court granting a gag order on the district attorney if one is requested, Fleischman added. "On the other hand, the defense may prefer that she keep talking, and may ask to submit clips of her interviews as evidence at trial."

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Willis' office also still faces the potential legal hurdle posed by Fulton County Superior Court Judge Scott McAfee, who oversees the criminal case, granting requests from Trump and his co-defendants last Wednesday to appeal his decision allowing Willis to remain on the case if Wade stepped down, according to CNN.

The Georgia Court of Appeals has up to 45 days after the filing date to determine whether it will hear the case. The defendants have argued that the romantic relationship between Willis and Wade created a conflict of interest that should lead to both prosecutors' disqualification.

The appellate court seems less likely to take up the appeal than McAfee was in granting the certificates of immediate review — and is more likely to affirm the judge's ruling than reverse it to resolve the issue so it doesn't arise post-trial if it does decide to hear the case, Cunningham said.

But he still believes that Willis should take a temporary leave of absence from the case and allow a chief deputy in her office to oversee it.

There's "absolutely no doubt, in my mind that it's better for the case for her to take a temporary leave," Cunningham said, explaining that the district attorney doing so makes the probability of the appellate court accepting the appeal or potentially granting a stay on further proceedings to hear the appeal — as was done in Trump's Washington, D.C. federal case — "much less likely."

"I do think that the credibility of the case has taken a terrible hit because of her conduct," he continued, arguing that the "odor of mendacity" that Judge McAfee wrote in his decision earlier this month remains over the prosecution "dissipates if she takes a leave."

But, based on Willis' weekend remarks, it doesn't appear "at all" that she's thinking taking a temporary leave would better the case, Cunningham added. "I guess one should wonder whether she is thinking about what's best for the case, rather than what's best for her. But she, of course, would say she's thinking about what's best for the case."