Background reading:

• LISTEN: “Fifteen Minutes of Feminism — The Trump Indictments: Untangling the Mess (with Anthony Michael Kreis)”
• LISTEN: “Fifteen Minutes of Feminism—The Trump Indictments: Trump Goes to Georgia”

Transcript:

00:00:12 Michele Godwin: 

Welcome to 15 Minutes of Feminism, part of our On the Issues with Michele Goodwin at Ms. Magazine platform. As you know, we’re a show that reports, rebels, and tells it just like it is and on 15 Minutes of Feminism we count the minutes in our own feminist terms, and in this episode we’re continuing our series on the Trump indictments. The former President Donald Trump has been indicted over 90 times and across both federal and also state jurisdictions. These are ongoing trials in Washington, DC, in Georgia, in New York, and other parts of the country, and in this episode I’m joined again by Professor Anthony Michael Kreis. He’s an assistant professor at Georgia State University School of Law. He is an expert in both qualitative empirical methods and doctrinal analysis. 

The bottom line is this, that he has been in the courtroom at every step in the Georgia trials, the Georgia trials that involve the allegation that the former president Donald Trump attempted to interfere with the Georgia elections in 2020, and in this episode he’s helping to unpack the most recent hearings involving Fani Willis who is the prosecutor in Georgia and as well just where those matters stand both in terms of the prosecution of the former president for allegedly attempting to interfere with a Georgia election and also just what the most recent hearings mean for Fani Willis and for the prosecution. Sit back and take a listen.

It is such a pleasure to be back with you Professor Anthony Michael Kreis. Thank you so much for joining us on our Trump indictment series. You’ve been a mainstay in terms of a voice for us bringing your expertise and in fact your own courtroom experience as with at least one aspect of this. In Georgia you’ve been able to sit through some of the hearings and so what I want to talk about is what’s happening in Georgia right now if you could unpack exactly what it is that we’ve been hearing and seeing over the last couple of weeks in Georgia.

00:02:44 Anthony Michael Kreis:

Well, we’re still going through pretrial motions. And so, there have been a number of different motions that Judge McAfee has been considering. Some of them seem quite parallel to the cases in Washington, DC for example with presidential immunity and the supremacy clause and things of that nature, but I think of course what everybody’s been most focused on recently has been this allegation of wrongdoing on the part of the DA’s office and Fani Willis by having a romantic relationship with one of the contracted special prosecutors Nathan Wade and as a consequence of that the defense attorneys have claimed that this is an impermissible bias and that the DA’s office should be disqualified and removed from this case. And so, that’s really where we’ve been at and well it’s been dramatic to say the least.

00:03:37 Michele Goodwin:

Fill us in on some of that drama. I think you’re right, there have been memes. There’ve been tweets. Social media has been aflame with all of this, and I suppose perhaps one place to begin, although there’s so many, is that there’s this moment when Fani Willis says what you’ve mistaken here is that I’m not on trial, that those who tried to steal the election are the people that are on trial. So, what exactly is this? Is this a trial? What exactly are we seeing with regard to this Georgia hearing?

00:04:13 Anthony Michael Kreis:
Well, I think it’s really complicated and of course with social media, and I love my memes and things of that nature, but they don’t capture nuance and there is a lot of nuance here because on the one hand, right, the suggestion that there might be something untoward or unethical or perhaps just unwise about Fani Willis having this romantic relationship I think that that’s a legitimate debate to have but this is also something that is just imbued with issues of race and gender and I think that’s part of what Fani Willis was talking about, right, that people put her on trial as a way to discredit the entire enterprise of investigating the results of the 2020 election and the subsequent efforts to overturn it and then prosecute people for their essentially unwillingness to adhere to democratic principles here in Georgia and abide by the election results and overturn it. And so, it might be more useful to kind of start off or go back to how we got here.

00:05:20 Michele Goodwin:
Exactly. It really would be because that’s part of the texture of this because even if it were that Trump’s lawyers say that she shouldn’t be prosecuting this case, the case is going to prosecuted because already at least there are tapes of the former president pressuring officials in Georgia to provide him with more votes, so that he could carry the state. This is not a federal prosecution. This is a state matter that’s involving the interference with Georgia’s election and states can bring matters such as that. So, this doesn’t have to be a federal matter. It’s a state matter and it’s also a state RICO matter. So, maybe if you could actually start from the beginning to just remind people because as you say this is a tangled web and it doesn’t necessarily have to be as tangled as it is because there’s some clarity to this case.

00:06:17 Anthony Michael Kreis:
Right. So, let’s start from the very beginning for a brief second, right, which is after the information came out that Brad Raffensperger, secretary of state here in Georgia, was essentially being browbeat by former President Trump in order to change the election results there were a number of people immediately, myself included, in fact I think this came out January fourth, the information, that evening January fourth I said I think this is unlawful and Fani Willis should investigate. And so, there were other people who also joined that call and Fani Willis eventually heard that call and slowly but surely assembled a team of individuals to pursue an investigation through the special purpose grand jury, which is essentially a grand jury without indictment power here in Georgia that is simply investigative body.

She assembled again a team of lawyers that are, you know, staff attorneys in the district attorney’s office but because of the breadth and the scope and the public importance of this case she solicited other people to join the team, including former Governor Roy Barnes who declined to join because the pressure on people involved in this in terms of not just a time commitment which is exhaustive no doubt but these are individuals who are under constant threat by folks who lean into political violence as a tool of choice for them.

00:07:51 Michele Goodwin:
And in fact to just take on moment on that, we have seen a verdict against Rudy Juliani involving election workers who were threatened and that verdict was in the tens of millions of dollars decided by a jury that found in fact that he had spoken in such a way that was false about these women and some complicity with trying to commit some sort of fraud with the election what have you and he lost but to your point with regard to violent because they experienced death threats and other kinds of things that required them to make various adjustments to their lives given the threats of violence. 

00:08:36 Anthony Michael Kreis:
Right. And so, you know, a number of people turned down that offer to participate in the trial as a special prosecutor. One of the individuals who took on the lead prosecutor role, or maybe I would not call him the lead prosecutor per se but maybe the team leader, the manager of the entire case is Nathan Wade and of course Nathan Wade and Fani Willis their relationship is at the center of this motion to disqualify. Essentially, you know, the allegation is that Fani Wilis and Nathan Wade had a romantic relationship at or around the same time that he was initially hired and so because he is a special prosecutor he bills as most lawyers do through billable hours rather than a salaried position and in addition to that, right, there was evidence to suggest that Fani Willis and Nathan Wade were taking vacations together and people believe that it was possible if not likely that perhaps Nathan Wade was paying for Fani Willis.

So, it seemed not the allegation of an express kickback or anything like that but there was an appearance that it could have been said that perhaps Fani Willis was benefitting personally in a financial way from Nathan Wade being on the team. And so, that’s where we began with a very scant amount of evidence and a highly salacious bombshell of an allegation but of course it was an allegation, and you know last week between February 15 and February 16 the Fulton County Superior Court and Judge McAfee presiding had an evidentiary hearing to determine what in fact was the case, and I think that’s the first thing I kind of want to put a pin in, which is the allegations were incredibly damning but they were simply allegations and one of the hard things about this case is that Fani Willis and the DA’s office has been incredibly careful to not try to wade into a public debate, not use press conferences to litigate, right, but to speak through legal filings.

And so, they did not speak to that salacious charge of wrongdoing, and so people were speculating and speculating and speculating and speculating but it was last week where we had an evidentiary hearing. We have evidence now. And so, as I’m sitting through that hearing in the courtroom I had to like put my blinders on and think like Judge McAfee has to think which is, you know, let’s look at the evidence that’s before us and what can we determine. And so, Fani Willis essentially said that she and Nathan Wade had a romantic relationship that began after he started his time at the Fulton County DA’s office. So, this idea that there was some kind of agreement or intent to profit off the prosecution was undermined by that statement and that evidence and that was backed up by Nathan Wade as well and that the relationship fizzled out over the course of the summer of 2023 between we’ll say May and June and August. And so, by the time the indictments were coming down and charging decisions were made the relationship was basically over.

And so, the idea that the prosecution, right, post grand jury indictment was somehow tainted or decisions were made in order to benefit a romantic partner or that Fani Willis was benefitting from it from the prosecution has been severely undermined by the timing of things and in addition there’s a significant amount of evidence to suggest that Fani Willis pays for things in cash. And so, either she paid back Nathan Wade for certain trips and like there was a cruise and so she paid back in cash for that or she did what I think many people do when they travel with friends or even people they’re romantically involved with which is you don’t have a tit for tat ledger where you try to exactingly figure out how much everybody owes to the penny, right. 

Someone might buy the plane tickets and someone covers the hotel and the other person pays for dinner one night and someone pays for dinner the other night and the idea with that being that it all balances out in the end. And so, at the end of that evidentiary hearing we basically got to I think a basic conclusion, or at least the one I drew, which is Fani Willis and Nathan Wade’s relationship was always before the prosecution. The charging decisions that were made were not influenced by their relationship because the relationship was over. The prosecution has not been influenced by that because the relationship never existed after the indictments were handed down. Grand jury’s decisions, the grand jury itself, was not influenced by the relationship because on the relationship was over but two Nathan Wade was not independently the but for cause of the investigation and the decision to prosecute, right.

I think anybody who was trying to make a selective prosecution claim would have a really hard time showing that there are similarly situated defendants who would have gotten off without having being investigated and potentially prosecuted. So, now we’re at Judge McAfee. This has been kicked out to Judge McAfee and we’ll have summations sometime in the next few days or few weeks. It’s not clear exactly when that’ll happen, and we’ll have to see whether or not a disqualification is ordered.

00:14:08 Michele Goodwin:
And if there is a disqualification, I mean there may not be a disqualification ordered for the very reasons that you’ve just articulated, and some have said this is a fishing expedition which has been a part of the Trump team defense strategies across the variety of indictments and litigation taking place. There are lawyers some have said that don’t want to represent the former president for any number of reasons. There are lawyers who themselves have been censured, disbarred or are under investigation who have been part of his team, but if it were the case that she’s disqualified there are listeners, viewers, who would want to know does that mean that the Georgia case goes away.

00:14:59 Anthony Michael Kreis:
That’s a hard question because there’s the theoretical answer and then there’s the practical answer. The theoretical answer is no it doesn’t go away. What would happen is it would get kicked out to another prosecutor’s office. It could also be assigned to an independent lawyer in the state of Georgia who could take it on without being part of the office, but I think given the amount of resources of this it would require you absolutely have to go to another country district attorney. The prosecuting council of Georgia, which is essentially a private entity here in Georgia that represents prosecutors, the head of that entity would pick whoever the DA is. He suggested that the proximity of the jurisdiction would be really important to him. So, nearby DeKalb County would probably be a likely candidate, nearby Gwinnett, nearby Cobb County. 

These would probably be the jurisdictions they would go to first. Now, if that is the case I suspect that there are some of those DAs would be enthusiastic about picking up the mantle and continuing on with the case. You know, it’s not necessarily true though that all of them have the same resources and the ability to do that. And so, whether or not they would bring the same kind of full force of their office to bear in the same way that Fani Willis’s here in Fulton County is doing is not guaranteed. Now the other important thing of course is that while it is a case that would be transferred to another DA’s office because the entire office is disqualified, the case itself would not leave Fulton County.

So, you would still be in Fulton County court before Judge McAfee before a Fulton County jury. So, the fundamentals of the trial are not different. It would just be the difference would be that the team would be from another jurisdiction. Now of course the other thing too that’s also important is not only is the question of bandwidth and political will kind of dispositive in terms of how effective another office will be but the decisions about plea bargaining and things of that nature also would be up to that office. So, maybe there would be a different calculus that would be pursued by a different DA than Fani Willis. So, maybe more deals would be struck, maybe fewer deals would be struck. Maybe some charges would be let go. 

So, maybe the RICO charges would fall apart and you would see, right, more narrow slices of the election code being used or something of that nature. So, the case wouldn’t go away, but it certainly might not necessarily look the same as it would had Fani Willis remained in charge.

00:17:49 Michele Goodwin:
And that’s interesting too considering that some have called Fani Willis the RICO queen as in she has been very successful with bringing RICO charges successfully with indictments, prosecutions, and convictions. The schoolteachers in Georgia, drug dealers in Georgia. So, with the RICO charges here she has quite the track record of prosecuting under RICO and to that end there are more than 30 individuals, well there are more than 30 who are non-indicted coconspirators and then there’s a wash of co conspirators that are indicted under this. All right, I know it’s always hard to make predictions. It is and perhaps it’s unfair to even ask you this question but what’s your sense in terms of what potentially could be the outcome here?

00:18:49 Anthony Michael Kreis:
That’s a good question. So, I think I’d start off with I have an immense amount of respect for Judge McAfee. So, I always kind of laugh because Judge McAfee, his wife and I were friends when I was in grad school. And so, I actually hung out with him like 15 years ago. So, if you would imagine we would be in this position today that would have given me a good laugh.

00:19:15 Michele Goodwin:
Last week you would have been in the same courtroom.

00:19:17 Anthony Michael Kreis:
Yeah. Yeah. And so, it’s very interesting to kind of think back on that but I do have a lot of respect for him. I think he has shown himself throughout this entire pretrial process to be exceedingly thoughtful, thorough and give everybody I think the process that they believe they want and that they’re owed. There were people for example who, you know, said that they didn’t think the evidentiary hearing was necessary, that it was just kind of dramatic circus and there was some drama to it but I think the process matters here because all of these things were aired out in public and people can make decisions for themselves and see what the evidence was and I think if you look at the evidence it’s really thin to suggest that there’s something here that tainted this prosecution. 

And so, that’s why I think if I’m Judge McAfee and I’m truly just looking, truly just looking at the evidentiary record because people will look at the record but they also take into account the characterization of evidence by the briefings from defense attorneys and the weeks and weeks of bad press that DA Willis received and the mudslinging and they take all that into account but of course that’s not evidence. And so, if you’re just looking at the record to me it’s really, really hard case to make. Now here’s the other issue though, if the standard is a concrete conflict of interest which is often the standard that people talk about with prosecutors that if they have a conflict of interest that is concrete in nature then they must be disqualified, and of course these are kinds of things where they prosecute somebody who has a business that is a competitor of a business that they have a financial stake in or that they’re prosecuting somebody and the victim of that crime is somebody related to them, right, something of that nature. 

If that’s the standard I don’t think that’s been met but the quirky part about Georgia law is it’s not clear what the standard is. And so, Judge McAfee and other judges before have suggested that perhaps the standard is, you know, an appearance of impropriety, right, which is a standard that we use for judges typically and we use that for judges because we want them to be impartial adjudicators. Now prosecutors aren’t impartial. They’re not adjudicators and so I don’t think that standard personally should apply but if it does then I think there’s a real question, right, has all this mess, has this kind of nonsense that has come up in the media has a perhaps perfectly lawful decision but unwise decision to start a romantic relationship intraoffice for a big case in this nature with a prosecutor who is a contract employee, is that an appearance of impropriety, I think that’s a tougher question.

And so, so much of the outcome, and that’s why I have a hard time making a prediction and it’s difficult for me to say, but so much of it is going to be determined based on the standard that Judge McAfee applies because the minute it is that appearance of impropriety that’s a tough call. Again, if it’s the concrete conflict of interest I think we have no problem. Disqualification is completely dead on arrival, but you know, that kind of more ethical standard as opposed to a concrete piece of evidence to say that there’s a conflict I think that makes all the difference. 

00:22:55 Michele Goodwin:
Anthony, thank you so very much. I truly, truly appreciate your joining us.

00:23:03 Anthony Michael Kreis:
Very happy to join you.

00:23:06 Michele Goodwin:
Guests and listeners that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. Magazine. I want to thank each of you for tuning in for the full story and engaging with us. We hope you’ll join us again for our next episode where you know we’ll be reporting, rebelling, and telling it just like it is. For more information about what we discussed today head to MsMagazine.com and be sure to subscribe, and if you believe as we do that women’s voices matter, that equality for all persons cannot be delayed and that rebuilding America and being unbought and unbossed and reclaiming our time are important then be sure to rate, review, and subscribe to On the Issues with Michele Goodwin at Ms. Magazine an Apple podcast, Spotify, iHeart radio, Google podcast, Stitcher, wherever it is that you receive your podcasts. 

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