With Fulton County District Attorney Fani Willis’s criminal investigation of Donald Trump heating up, we can expect all manner of dubious legal objections to start clogging the Georgia courts. An important case in point is a motion being pushed by 12 of the false electors she is investigating that seeks to disqualify her. It was headed for a hearing this week and is a harbinger of things to come, including potential spurious objections that Attorney General Merrick Garland will likely face as his own fake electors investigation heats up.
The motion was initially filed by Georgia State Sen. Burt Jones, who was one of those Georgia Republicans organized after the 2020 election to “certify” a victory for Donald Trump. He is also the Republican nominee for lieutenant governor and a target in the Willis’s investigation of election fraud and related crimes. He has filed his motion with the court demanding recusal of Willis because she supports his opponent in the lieutenant governor’s race. On Tuesday, 11 other false electors who are also targets joined his motion. The judge ordered Willis to reply and set a hearing on the matter for Thursday.
To us as legal ethics experts (two of whom respectively served in Republican and Democratic administrations, and the third of whom specializes in Georgia legal ethics), this is one of the most unfounded and illogical recusal motions we have ever seen filed against an attorney. It sharply contrasts with the strength of the case Willis seems to be putting together on the phony electors and other matters, featuring powerful evidence of alleged illegality. Not only has the Georgia investigation been transparent and focused on where the facts have led, the arguments made by Jones and joined by his 11 colleagues don’t add up to much. District attorneys in Georgia and across the country are elected, which means they participate in political life. They hold fundraisers and they give fundraisers for other candidates. They endorse other candidates for elected office, and they are themselves endorsed. It’s a known and normal part of the path to becoming and continuing to serve as a district attorney.
Jones focuses on the fact that the Fulton County district attorney hosted a fundraiser for his political opponent, and argues that for that reason she must refrain from a criminal investigation in which he is a target. Fundraising is a routine and indispensable part of elective politics, though. Tellingly, the recusal motion does not point to a single case in Georgia or anywhere in the country where, as here, typical political activity by a district attorney creates conflict of interest and so requires recusal.
The implications of this new recusal rule requested by Sen. Jones are unworkable. Under his suggested rule, politically-active Republicans could only be prosecuted by other Republicans. Politically-active Democrats could only be prosecuted by other Democrats. In counties with a Republican elected district attorneys, politically active Democrats would be free to engage in crime sprees, including election fraud, without fear of being prosecuted. Politically-active Republicans would enjoy the same freedom in counties with an elected Democratic district attorney. A politician would be subject to the law only in places where the politician’s party is in control of the prosecutor’s office. That is a formula for chaos at best, corruption at worst.
Of course, Jones will try to argue that his recusal motion is more narrowly drawn. If Willis had not hosted the fundraiser, perhaps she would not have to recuse. But if fundraising makes all the difference, imagine another scenario. What if a likely target of an elected district attorney holds a fundraiser for the district attorney’s opponent? That direct political opposition to the district attorney surely poses a greater risk to the objectivity of the prosecutor. Does that require the district attorney to be recused? If so, then the target of a criminal probe has what amounts to a “get out of jail free card” by organizing a fundraiser for the district attorney’s opponent’s campaign. Again, both the crux and the potential tentacles of Jones’s argument are impractical in a system with elected prosecutors.
Furthermore, there’s no actual need to recuse prosecutors in these instances because we already have recusal rules and other procedural protections in place to prevent politically motivated prosecutions. Jones can receive his due process without Willis having to recuse.
First, there are a few extreme cases that particular district attorneys should be disqualified from bringing. For example, if a district attorney during his campaign repeatedly promises supporters that he will investigate and prosecute the governor without any basis to do so, he should not upon assuming office investigate and prosecute the governor, particularly if there is zero evidence that the governor committed a crime.
That goes too far—that is not routine political activity. District attorneys should not run for office on a platform of prosecuting particular people from the opposing political party without any legitimate basis, and if they do run on such a platform, they should be disqualified from doing so.
Second, juries, not prosecutors, decide whether to convict. All defendants, regardless of political affiliation, are entitled to fair juries. Our system has safeguards in place, even in places where jurors are more likely to be sympathetic to one party over another. There are rules that allow for a juror’s biases to be explored, for excusing jurors for cause, and for giving defendants peremptory challenges to particular jurors.
Third, judges, not prosecutors, make the legal determinations in criminal cases. Prosecutors and defense attorneys argue their legal issues, but judges decide. Appropriately, there are stricter rules for judges with respect to recusal based upon partisan politics. Georgia judges must recuse from a case in which “the judge has received or benefited from an aggregate amount of campaign contributions or support so as to create a reasonable question as to the judge’s impartiality.”
Judges need not recuse from all cases involving contributors to their own or an opposing candidate’s campaign, but recusal from cases involving larger contributors is sometimes required and a judge’s participation in a case involving a very large campaign contributor can be a due process violation, as the U.S. Supreme Court decided in Caperton v. Massey Coal in 2009.
The bottom line is this: judges, not prosecutors or defense attorneys, are the legal decision makers, and judges are subject to stricter recusal rules.
The ultimate state-law decision makers in the case would be the justices of the Georgia Supreme Court, who are chosen in non-partisan elections, although eight of the nine justices were appointed by Republican Governors Brian Kemp and Nathan Deal to fill vacancies that arose before they ran for re-election. None of the justices was appointed by a Democrat.
If questions of federal law arise in the Georgia election fraud case, the federal courts could ultimately decide, including potentially the U.S. Supreme Court where six of the nine justices were appointed by Republican presidents.
Speaking of federal law, we know that the Department of Justice has their own very active investigation into the false electors scheme. If Jones’s ploy is allowed to succeed, how long will it be before someone tries to block the DOJ investigation because Garland was appointed by the president who these fake electors and their candidate were opposed to? Like Willis’s political activity, that of the current president who appointed Garland is a normal and necessary part of the system and forms no logical basis for recusal.
Sen. Jones and his 11 colleagues will get plenty of due process if they are prosecuted by the Fulton County district attorney. Jones has no valid case for recusal of Fani Willis or any other prosecutor from this case. Nobody is above the law, including Jones or any other elected official.