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Left: Former Justice Department official Jeffrey Clark in Washington, D.C., June 13, 2023. (AP Photo/Amanda Andrade-Rhoades) Right: Fulton County District Attorney Fani Willis in Atlanta on Aug. 14, 2023. (AP Photo/John Bazemore)
Arguments continue to be made in the disqualification controversy targeting Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade as the judge overseeing the matter considers the evidence and relevant legal standards.
Fulton County Superior Court Judge Scott McAfee is, inevitably, being inundated with post-hearing filings as 15 co-defendants still remain in the racketeering (RICO) and election subversion case against Donald Trump. Most, if not all, of those co-defendants have signed onto the effort to remove Willis and her entire office from the case.
An 11-page brief filed in Fulton County Superior Court on Wednesday by co-defendant Jeffrey Clark, a former U.S. Department of Justice lawyer charged in the fake electors plot, accuses Willis of ratifying perjury, misstating the law, and several “actual” conflicts of interest.
Clark is an environmental lawyer whom Trump nearly tapped to be acting attorney general in his failed scramble to retain the presidency after losing to Joe Biden in the 2020 election. Clark previously worked as an assistant attorney general at one sub-agency within the DOJ and as an acting assistant attorney general within another.
The charges against Clark are based on an unsent draft letter falsely claiming the DOJ “identified significant concerns that may have impacted the outcome of the election in multiple states, including the state of Georgia.” Clark’s draft also called on officials to convene the state legislature and consider advancing a slate of contingent, or fake, electors committed to voting for Trump in the Electoral College.
Clark’s filing, prepared by Harry MacDougald, is stylized as a reply to the district attorney’s supplemental post-hearing brief — but begins by discussing an issue that the state’s brief did not address at all.
Instead, the filing centers an argument that Willis, and attorneys in her office, bear some measure of responsibility for perjury allegedly committed by Wade during the disqualification hearing.
Wade has said different things about the unraveling of his marriage — specifically regarding his marital fidelity — in his responses to two different sets of interrogatories. During his testimony in February, he attempted to excuse those inconsistencies filed in court documents.
Clark says Wade lied and that Willis had a duty to correct those lies.
“Wade obviously lied under oath in his testimony on February 15, 2024 when he was attempting to explain his obviously false interrogatory responses in his divorce case,” the reply reads. “We are now 20 days past that testimony. In that intervening period, the District Attorney has said and done nothing whatsoever to either disavow Mr. Wade’s perjured testimony or require him to correct it.”
Categorizing this alleged failure as a “spectacular breach” of her duty, Clark’s filing argues Willis has violated her duty of candor under the professional rules of conduct that govern Peach State lawyers.
“The reason for this state of affairs is obvious — it is in the District Attorney’s personal, individual interests that Mr. Wade’s perjury go uncorrected,” the reply goes on. “Ms. Willis has ratified Mr. Wade’s perjury by not repudiating it as her duty requires. The District Attorney’s professional judgment has not been merely impaired by her conflicts of interest, it has been corrupted beyond redemption.”
Clark’s defense attorney previously raised Wade’s alleged perjury during his own closing arguments in the hearing last week.
“The husband is hiding things from his wife,” MacDougald said. “He lied in his interrogatories and then he got on that stand and lied about lying in his interrogatories. And the lawyers for the DA, the DA’s office, they just sat there and let him do it. They did nothing to correct obviously perjured testimony. And that’s reason enough to disqualify all of them.”
One such actual conflict was the unusual decision by the district attorney herself to file a nonparty motion in Wade’s divorce to obtain a protective order against Wade’s estranged wife, Clark argues.
“In that filing the District Attorney violated Rule of Professional Conduct 3.4(h) by abusing the power of her office to threaten her boyfriend’s wife with criminal prosecution to gain advantage for herself and her boyfriend in her boyfriend’s divorce,” the reply reads. “This is also an actualized conflict of interest in which she advanced her personal interests and those of Mr. Wade to the detriment of her professional duties.”
The state has attempted, with questionable success so far, to convince McAfee that an actual conflict of interest is the legal standard by which a prosecutor can be removed from a case in Georgia.
In their supplemental brief, the state also essayed an even higher burden on the defense which would apply the “actual conflict” standard to a very specific set of facts. Namely, that a prosecutor must have a monetary interest in the outcome of a case.
MacDougald rubbished that theory as not in accord with the law.
“This ignores that a prosecutor’s statutory duty of impartiality inheres in every official act they take, not just conviction,” the reply reads. “The enforcement process has a milestone at the point of conviction but the process obviously begins earlier.”
The reply goes on to cite case law in Georgia which, it claims, stands for the proposition that “indictments were to be quashed if the personal interest existed when the case was presented to the grand jury.”
Clark’s reply likens those facts to the present case, at length:
Here, Mr. Wade was paid over $650,000 over a two-year period beginning long before the indictment and long before any conviction, and the District Attorney received gifts from him during this period. She therefore had a personal interest in the case that was operative at the time of indictment. The State’s suggestion that this does not matter because the interest must be in conviction alone should be rejected because it is premised on the false notion that prosecutors have no duties of impartiality at any other time in the progress of a criminal case.
