Harry Litman - When Courts Get It Wrong

Last week, the Court of Appeals of Georgia ruled 2-1 that Fani Willis and her office need to be disqualified from the big RICO case involving Trump and nearly a score of other defendants. I’m not going to go over the complicated details of the case in general. But I want to use it to illustrate something that I think is an important point and that will be an ongoing tenet of this Substack.

At its simplest, the point is: a case can be right and a case can be wrong; and its rightness or wrongness depends on norms of reasoning that in most instances you don’t need a law degree to apply.

The Georgia Court of Appeals’s opinion reversed a trial court ruling that declined to order Fani Willis and her office to be recused from the case. The trial court, Judge Scott McAffee, held that while there was an appearance of a conflict of interest stemming from Willis’s personal relationship with prosecutor Nathan Wade, whom she appointed, there was no actual conflict that could give rise to disqualification.

The trial court’s decision occurred after a multi-day hearing during which a national TV audience learned details of the relationship, from when it started to how Willis paid for their trips (far more information, in my opinion, than was needed to decide the motion). But McAfee eventually decided, sensibly, that there was no financial conflict of interest arising from the imprudent relationship. The core of his reasoning was that whether Willis realized $20 here or $200 there from dating Wade was irrelevant to the issue at hand. What matters—the only thing that matters under Georgia law—is whether she, in some way, breached or compromised her duty to the people in prosecuting the case. There was no reason to believe that; in fact, it would be far-fetched.

https://harrylitman.substack.com/p/when-courts-get-it-wrong