When Courts Get It Wrong

The Georgia Court of Appeal Gives a Clinic in Bad Judicial Decision-Making

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.

McAfee ordered Willis either to discharge Wade or to step aside along with her whole office. That was a Hobson’s choice, and Wade quickly resigned. To my mind, that order was itself somewhat of an overreach, given the absence of any actual conflict of interest, as Georgia law seems to require. But there was no real harm done since Wade agreed to leave the case. In fact, the one point on which everyone agreed was that it had been a spectacular lapse of judgment for Willis to take up with the same prosecutor she was appointing to the biggest case of her career.

McAfee permitted Trump and his team to appeal and the case went to the Georgia Court of Appeals, which was cryptic in its consideration. At one point, the court simply took the case off its calendar with no explanation. But the decision overruling McAfee, and holding that he had abused his discretion in not disqualifying Willis, came down last week.

There’s a lot to discuss in terms of what happens next (Willis’s office probably will appeal to the Georgia Supreme Court, which likely will affirm) and whether the case will ever be put back together (probably not). But I want to focus on something smaller and more cross-cutting with the Court of Appeals’ opinion.

The age of Trump has massively corroded the public’s view of judges to the point where many people think that judging is all nonsense, that there are no right or wrong answers, and decisions are driven solely by crass details such as partisanship.

This has always been a huge subject in jurisprudence, one that people have been wrestling with since Aristotle and before. It’s been particularly fertile ground in the last 75 years, from H.L.A. Hart to Ronald Dworkin to Mark Greenberg.

Don’t worry. This is not an introductory course in jurisprudence. I just want to use the Georgia Court of Appeals opinion to make a point that is sure to figure in many of this Substack’s dispatches about particular cases.

And that is, as I say, there are right answers in the law, and those transcend the facts of a judge’s party affiliation or who appointed them. It follows that there are also great opinions, good opinions, and lousy opinions. If I can persuade you of those judgments, or even get you to keep an open mind about them, that would be more than enough for one Substack.

So let’s zero in on the Georgia Court of Appeals opinion. It’s 31 pages long, but lawyers develop the skill of quickly identifying the heart of a decision, more or less analogous to what journalists call the nut graf.

Here is Judge McAfee’s nut graf from his original ruling back in March: “The court finds, based largely on the district attorney’s testimony, that the evidence demonstrated the financial gain flowing from her relationship with Wade was not a motivating factor on the part of the district attorney to indict and prosecute this case.”

On appeal, that ruling is reviewed for abuse of discretion, meaning you give the benefit of the doubt to the trial court, which actually observed the testimony and oversaw the hearing. This implies not only an additional modicum of proof but also an explanation: what did the trial court do that constituted an abuse—an improper manipulation—of its discretion?

First, the Georgia Court of Appeals backpedals away from any statement of a rule that could frame analysis of that question. Instead, they say Georgia law merely counsels them to “examine the particular facts and circumstances of each case.” This is my third citation of Justice Scalia in this young Substack, but he eloquently railed against the muck and imprecision of these sorts of multifactor balancing tests, which he said are “not rule[s] at all but a mere invitation to make an ad hoc judgment.”

And an ad hoc judgment—loosey-goosey and subjective—is what we get. The court lays out some general principles, such as abuse of discretion, and then introduces one new idea: the public role of a district attorney as distinct from a private lawyer.

It’s now ready for its own nut graf, which reads as follows: “After carefully considering the trial court’s findings and its order, we conclude that it erred by failing to disqualify DA Willis and her office. While we recognize that an appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated, and no other remedy will suffice to restore public confidence in the integrity of these proceedings.”

There you have it: “This is the rare case.” There’s no financial conflict of interest, nor any actual conflict of interest, but it’s just the “rare” case where disqualification is necessary. Are rare cases any involving a prosecutor? Are rare cases those with huge public focus or large political impact? We don’t know.

But the opinion’s failings look worse once you read Judge Land’s dissent. It states a rule, and a very clean one: “Where, as here, a prosecutor has no actual conflict of interest and the trial court, based on the evidence presented to it, rejects the allegations of actual impropriety, we have no authority to reverse the trial court’s denial of a motion to disqualify. None. Even when there is an appearance of impropriety.”

What follows is a statement that, if correct, blows the majority opinion out of the water: “For at least the last 43 years, our appellate courts have held that an appearance of impropriety, without an actual conflict of interest or actual impropriety, provides no basis for the reversal of a trial court’s denial of a motion to disqualify.”

This is the sort of flat, clean assertion that the majority absolutely must address, and yet it doesn’t. Perhaps the dissent overstated or exaggerated the state of the law, but the logical inference from the majority’s silence is that it didn’t.

If Judge Land’s statement is right, then the majority’s decision to overturn Judge McAfee based on an appearance of a conflict must be wrong. There are accepted doctrines for distinguishing and, in rare instances, overruling precedent, but it’s a clear cheat to depart from a binding line of precedents. It’s definitely shabby to do so with an explanation as threadbare as “This is the rare case.”

Determining whether a case is right or wrong is often a much more complicated and nuanced analysis. But here the Georgia Court of Appeals has made it easy for us. I think we can say—apart from any views about the prosecution or any disappointment about Trump’s continuing good luck—that the opinion is wrong and, moreover, that it is lousy.

It’s part of my overall approach to the law that statements like that make sense. (I’ve made them, in fact, about several Supreme Court opinions in the last three Terms.) A lot of people disagree, many vehemently, and incline to the view that there are no right or wrong decisions, just the caprices of individual judges. And you may be among them. But in that case, it’s important for you to know my contrary mindset. And the Georgia Court of Appeals opinion is a pristine example of a wrong opinion.

Talk to you later.