Solomon he’s not! Georgia judge’s ‘baby split’ flouts the rule of law

One of the shocking things that any litigator discovers, after even a brief time in practice, is that judges often fail to follow the rule of law. Being human, they try not to favor one party over another, even when the law is clear. Not that the law is always that lucid, but there are instances when judicial decisions appear to be governed almost by whim rather than the law. In the Georgia prosecution of Donald Trump and others for alleged election interference, we have just arrived at a splendid example of this phenomenon.

Fulton County Superior Court Judge Scott McAfee, who gives every appearance of being an unbiased and rule-abiding jurist, was urged by the defendants’ lawyers to disqualify two of the prosecutors in the case: Fulton County District Attorney Fani Willis and her admitted paramour, specially appointed counsel Nathan Wade.

In our partisan times, it is hard for any of us to believe we still have anything approaching a government of laws, not men.

Defense attorneys argued that Willis and Wade lied on the stand about the time their relationship began and whether the hiring of Wade by Willis (at a high salary relative to other prosecutors in her office) and Willis taking repeated vacations with Wade (for which Willis claimed she compensated Wade in unrecorded and untraceable cash contributions) constituted a “conflict of interest” or the “appearance of a conflict of interest.”

Georgia law could be read to mandate the dismissal in the case of an “appearance of conflict,” and it was on that proposition that the judge apparently decided that either Willis or Wade must leave the case. McAfee on Friday left the decision of who was to go up to Willis.

Pundits immediately began to proclaim that the judge had “split the baby,” referring to the famous decision noted in the Old Testament in which King Solomon, determining a case where two women claimed to be the mother of a child, offered to slice the child in two, giving half to each of the claimants. The real mother, whose maternal instincts would not permit her to allow her child to be killed to carry out the ruling, begged the king to give the baby to the false claimant to spare the baby’s life. Solomon, purportedly the wisest king Israel ever had, then awarded the whole baby to the real mother.

Justice was done in that biblical case, of course. “Splitting the baby” there was simply a ruse to achieve justice.

Not so in Scott McAfee’s court. If there was a conflict, or even the appearance of a conflict, in the Georgia prosecution, surely Willis and Wade perpetrated that conflict. To remove only one of them from the case does nothing to remove the taint.

The rules regarding “conflict of interest” exist because when a prosecutor has a conflict, the presumption is that person is untrustworthy and will not act objectively to advance the interests of justice. That concern remains, particularly when neither Willis nor Wade were candid about the details of their relationship, as the judge seemed to realize. If they could not be trusted to tell the truth on the stand, how could either be trusted to remain fair as a prosecutor?

It is difficult not to think that McAfee might also have been swayed to attempt this seemingly Solomonic solution because he is soon to face the voters of Fulton County in his first judicial election (he was appointed by Georgia’s governor to fill a vacancy, but his position is an elective one in the Peach State). This is, of course, an argument for the folly of electing judges, but all judges do tend often to compromise or force the parties to settle.

In our partisan times, it is hard for any of us to believe we still have anything approaching a government of laws and not men, as our Constitution’s framers envisioned. It’s a fair bet that Donald Trump’s attorneys will appeal McAfee’s decision and a higher Georgia court will decide on the legitimacy of this particular judicial legerdemain.

The RICO statute on which Willis’ prosecution is grounded was never intended to deal with anything but organized crime. To stretch it into something that could derail honest differences about an election would be likely to fail on eventual appeal in any event. There is some justice rendered that two of the participants in this wrongful “lawfare” will inevitably suffer damaged reputations, but Judge McAfee’s baby-splitting still damages the rule of law.