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Monday, March 11, 2024

For This Rookie Judge, a Pivotal Decision Looms in the Georgia Trump Case - The New York Times

For This Rookie Judge, a Pivotal Decision Looms in the Georgia Trump Case

"Judge Scott McAfee will soon decide whether to disqualify Fani Willis, the prosecutor leading the case, on the grounds that her romance with a subordinate created a conflict of interest.

Judge McAfee, wearing a black robe and red tie, enters the courtroom.
Judge Scott McAfee is presiding over the Trump case in Georgia and will decide whether to disqualify Fani Willis.Pool photo by Alyssa Pointer

For Judge Scott McAfee, it was probably an awkward moment.

At a hearing in Atlanta last month, he issued a warning to his former boss, Fani T. Willis, the Fulton County district attorney, during her combative turn on the witness stand. Ms. Willis, who was fighting allegations that threatened her grip on the election interference case against former President Donald J. Trump, had grown so irritated with a defense lawyer that she began expressing her frustration directly to the judge.

“I’m going to have to caution you,” the soft-spoken Judge McAfee, of Fulton County Superior Court, told her in response. “We have to listen to the questions as asked. And if this happens again and again, I’m going to have no choice but to strike your testimony.”

Ms. Willis’s filibustering whirlwind subsided as she waved a hand in exasperation.

Now Judge McAfee, who at 34 is too young to be president himself, is preparing to issue a high-stakes decision in the Georgia case against the former president and 14 of his allies: whether to disqualify Ms. Willis on the grounds that a romance she had with Nathan Wade, the lawyer she hired to run the case, created an untenable conflict of interest.

Legal experts generally agree that Ms. Willis used poor judgment in paying a romantic partner public funds while he was also at least partly paying for vacations they took together — the basis for the defense argument that she engaged in “self-dealing.”

Opinions differ, however, on whether her actions created a legitimate conflict of interest — and on whether even an appearance of a conflict is sufficient to disqualify the district attorney and her whole office.

Barely on the court for a year, the even-keeled Judge McAfee hews to textualism, a common judicial philosophy that follows the law as written rather than divining intent. During the Trump case, he has kept things moving and done what he can to lower the temperature.

Ms. Willis and her team of prosecutors tried to persuade him not to hold hearings on the disqualification effort; she described the hearings as a “ticket to the circus,” and reminded the court and the public during her testimony that the case against Mr. Trump had not changed. He and 18 of his allies were charged last August with attempting to subvert the result of the 2020 presidential election in Georgia; four defendants have already pleaded guilty.

Judge McAfee issued a warning to Ms. Willis during her combative turn on the witness stand.Pool photo by Alyssa Pointer

But Judge McAfee believed the allegations were serious enough to proceed with evidentiary hearings that proved explosive, revealing intimate details of Ms. Willis’s personal life. The hearings focused on when the relationship started, and whether Ms. Willis and Ms. Wade were lying when they said it began after she hired him. Another central question was whether the two prosecutors split the costs of their vacations.

Last week, the Trump case became central to Judge McAfee’s own future on the bench when a Democratic challenger emerged in his re-election campaign and immediately criticized his handling of the disqualification matter. The opponent, Robert Patillo, is a local radio host and activist who has been affiliated with the Rainbow PUSH Coalition, which was founded by Jesse Jackson.

In an interview on Thursday, Mr. Patillo, 39, said Judge McAfee’s lack of experience had caused him to mismanage the case. “The court has turned this from one of the most solemn prosecutions of a former president into a daily reality show — something that you’d see on ‘Real Housewives,’” he said.

Judge McAfee declined to comment for this article.

The judge was appointed last year by Gov. Brian Kemp, a Republican, to fill a vacancy. Incumbent judges typically have an electoral advantage, since voters often don’t focus on judicial races. But as a Republican appointee in the heavily Democratic Fulton County, he appears to be taking nothing for granted.

He gave an interview to a local radio host on Thursday night, assuring listeners that the emergence of a political opponent would not influence his decision on whether to disqualify Ms. Willis, which he said he had already made.

“I’ve had a rough draft and an outline before I ever heard a rumor that someone wanted to run for this position, so the result is not going to change because of politics,” he said on WSB Atlanta. “I am calling it as best I can in the law, as I understand it.”

Judge McAfee grew up in Kennesaw, a suburb of Atlanta. At Emory, the elite private university in Atlanta, he studied political science and music and led Emory College Republicans, a student group.

He is an accomplished cellist. After Judge McAfee was assigned to the Trump case last summer, a number of news outlets highlighted an online video of him, as a teenager, playing Bach on an acoustic cello, then switching to an electric one for a rousing Jimi Hendrix-style version of the national anthem. A bandanna was tied rakishly around his head.

In the early 2010s, he studied law at the University of Georgia, where he was a high-performing student, competitor in mock trial competitions and office holder in the campus Federalist Society, the conservative legal network founded in the Reagan era to push back against what it calls “orthodox liberal ideology.”

Elizabeth Stell, a fellow law student who competed with Judge McAfee in mock trials, described his courtroom style at the time as “not overly flashy or overly emotional.”

“He was just very thoughtful in his argument, very well researched and just very put together and composed,” she said. “And classy, frankly.”

Nathan Wade on the stand last month. Pool photo by Alyssa Pointer

Anthony Michael Kreis, an assistant professor of law at Georgia State University, was pursuing a doctoral degree at the University of Georgia at the time and remembers Judge McAfee as serious-minded but not strident in his political views.

“We had more conservations about, and debates over Twizzlers vs. Red Vines and what’s the better candy,” Mr. Kreis said.

Judge McAfee interned for two State Supreme Court justices, Keith Blackwell and David Nahmias, both Republican appointees who influenced his approach. Later, he went to work for the Fulton County District Attorney’s Office, where, as a deputy prosecutor, he handled cases including armed robbery and murder.

His supervisor in the trial division was Ms. Willis. He also worked with Adam Abbate, the prosecutor whom Ms. Willis chose to make closing arguments during the disqualification hearings. Ms. Willis dropped a reminder that both men once worked directly for her during her testimony, as she was explaining that she kept her private life private.

“When I supervised Mr. Abbate and Mr. McAfee, they didn’t know who I was dating, but I can assure you I was dating somebody,” she said.

Judge McAfee later worked for officials who ran afoul of Mr. Trump. In 2019, he became an assistant United States attorney in Atlanta. The office was headed by Byung J. Pak, a Republican who quit in January 2021 after learning that Mr. Trump wanted to fire him for not backing his election fraud claims.

Weeks later, Judge McAfee was named state inspector general by Governor Kemp, who would also face Mr. Trump’s ire for declining to help overturn his narrow loss to Joseph R. Biden in Georgia.

A key issue the judge must address in his upcoming ruling is the standard for disqualification under Georgia law. At a hearing last month, he said that disqualification can occur if evidence shows even an appearance of a conflict of interest. Ms. Willis’s office asked him to reconsider, arguing that a higher standard — proof of an “actual” conflict — should be the bar.

Whatever he decides, Judge McAfee has already earned the respect of a variety of legal experts. Among them is Norman Eisen, who served as special counsel to the House Judiciary Committee during Mr. Trump’s first impeachment. Mr. Eisen has been vocal in supporting the Georgia prosecution, and has argued that there are no legal grounds to disqualify Ms. Willis.

But he has also called on Mr. Wade to step down, and he defended Judge McAfee’s decision to hold hearings on the matter.

“He is one of the most capable new judges that I have ever seen, and he has navigated an extremely challenging situation with grace and intelligence,” Mr. Eisen said.

Judge McAfee made clear last week that he was thinking about how his decision will be judged in posterity.

“I’ve got two kids, five and three,” he said in the radio interview. “They’re too young to have any idea of what’s going on or what I do. But what I’m looking forward to one day is maybe they will grow up a little bit and they ask me about it. And I’m looking forward to looking them in the eye and telling them I played it straight, and I did the best I could.”

Kitty Bennett contributed research.

Danny Hakim is an investigative reporter. He has been a European economics correspondent and bureau chief in Albany and Detroit. He was also a lead reporter on the team awarded the 2009 Pulitzer Prize for Breaking News. More about Danny Hakim"

For This Rookie Judge, a Pivotal Decision Looms in the Georgia Trump Case - The New York Times

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