The First Rule of Family Law Was on Full Display in the Fani Willis Hearing

This week, a court in Fulton County, Georgia, heard arguments about whether a romantic relationship between District Attorney Fani Willis and special prosecutor Nathan Wade disqualified her from continuing to try the Trump election interference case. The hearings delved into intimate personal and financial details, the complexity of divorce, and what actually constitutes a conflict of interest. Dahlia Lithwick and Jeremy Stahl discussed the hearing on this week’s Amicus; their conversation has been edited and condensed for clarity.

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Dahlia Lithwick: What are the options ahead in this case? What are the choices that Judge McAfee is gonna have to wrestle with as he thinks about what it is that he has to do and how? In turn, does that affect the timing of this massive, sprawling, what would’ve been a huge, huge, momentous case?

Jeremy Stahl: It’s important first to note, I think, that this is a very solid prosecution. Fani Willis brought a very strong case. She’s already won—and she’s the first prosecutor, I think, in these big Trump cases to have won—multiple plea deals with Trump’s big co-defendants—Sidney Powell, Kenneth Chesebro, Jenna Ellis, others—who have confessed, essentially, to some of the smaller charges in exchange for their testimony. These were big, important wins for the case against Donald Trump and the case that Donald Trump committed a crime to try to steal an election. So she’s accomplished that already. And the possibility of this case was that she would do more of that, right? That was the promise of this case. So it’s important to lay those stakes on the table.

I think to answer your question: It’s a very convoluted and difficult road. I think [Judge McAfee] can do a number of things. I think he can suggest that Nathan Wade should no longer be on the prosecution team, perhaps. He can say, “You know what, this is not a conflict of interest that actually prejudices the defendants in any way, because it really is hard to see how this specific set of facts does go to the detriment of these defendants.” Although I suppose a case could be made for that. So he could say, “No, we’re not gonna disqualify.” He could say the entire office is disqualified. And it’s this last option where things get really complex and difficult. If he does that, this decision about who becomes the new prosecutor, if there is a new prosecutor, goes to this official that has power over this in the state of Georgia.

This has already happened. Once in this series of cases [with] Lt. Gov. Burt Jones, Fani Willis was investigating him as part of this scheme to keep Trump in power during the 2020 election. She had done a fundraiser or something like that for one of Burt Jones’ opponents. The judge in that case said that this was a conflict of interest, and Willis was disqualified. That disqualification then got kicked up to this council that is supposed to determine these things. This was more than a year ago. The council has still not appointed a new prosecutor in that case.

The fact of the matter is that this could put the case on hold indefinitely. Even if a new prosecutor is selected, there is no guarantee that the prosecutor will decide to go forward with the case. Things are very much up in the air in a way that is not looking great.

It sort of makes me think of all the times that we talk about judicial ethics and the Supreme Court, particularly where we insist that judges and justices act impeccably. And, boy, we learned, whether we wanted to or not, on Thursday, just a whole lot about how relationships work, and what sexism is, and who makes sandwiches in the relationship, and travel to tattoo parlors around the world. The whole thing feels like a kind of desperate black eye to the way we think about how we would like to see the legal system perform. 

This raises a question for me, actually, because I know about your own previous professional experience. You were actually a divorce lawyer in a past life. And a lot of this stems from some divorce proceedings between Nathan Wade and his soon-to-be ex-wife.

A lot of the revelations around the relationship between DA Willis and Nathan Wade stem from that. And a lot of the details that were explored in this hearing had to do with the complexity of that situation—the complexity of a divorce, the complexity of relationships during a period of separation, or when a marriage is irrevocably broken.

Nathan Wade said his marriage was broken in 2015, so that left him free to engage in romantic relationships, and all these things. They were staying together for the kids. There is just so much messiness and complexity of actual personal relationships going on here, and you have some knowledge and experience of what that looks like from the perspective of a lawyer trying to sort through these things.

I had a couple of thoughts on Thursday about this. I always have to remind myself of the Michael Newdow Pledge of Allegiance case that made its way all the way up to the Supreme Court, where Michael Newdow famously did not want his daughter to have to say the pledge and say the words “under God.”

He argued it himself at the court. That started as a massive dispute between divorcing parents, which is a part of the case that we always forget about. So it’s true: While I was listening to disgruntled colleagues, former colleagues, talking about behavior and thinking about illness and COVID, and all of the ways that this is just unhappy families being unhappy in different ways, I was a little bit reminded of the first rule of family law as I was taught it, which is that criminal lawyers tend to meet the folks that they represent acting their very best, trying to behave really magnificently. Family lawyers tend to meet pillars of the community behaving really badly. People who in every other context are utterly beyond reproach, and yet there’s stuff stashed under the bed and horrible misconduct online. I think in some sense, what you’re poking at—and it’s true—is that this is the kind of stuff that probably exists in so many, not just divorces, but just every kind of relationship as it dissolves and begins with someone else. And it’s the kind of stuff none of us wants to know about because it always paints everybody in the worst possible light.