OPINION:
Fani Willis, the Georgia prosecutor pursuing claims of election interference against Donald Trump, is credibly accused of having hired Nathan Wade, with whom she allegedly has a romantic relationship, to assist her with the prosecution of the former president.
Furthermore, it is alleged that Ms. Willis’ office has paid Mr. Wade substantial amounts (including for 24 hours of work in a single day) and that Ms. Willis herself has taken expensive vacations with Mr. Wade, for which he may have paid.
It is with some amazement that I have observed Democrats defend Ms. Willis’ behavior. My astonishment was especially piqued when Norm Eisen, a White House ethics counsel under former President Barack Obama who worked for House Democrats on the first Trump impeachment, offered his opinion (cited in a number of major publications) that Ms. Willis has not violated government ethics in any meaningful way. (In the interest of full disclosure, I must note that Mr. Eisen and I have known each other for many years.)
As someone with a vast knowledge of government ethics, Mr. Eisen clearly knows what can constitute an ethical breach while engaging in government service. In the course of his service in the White House, he undoubtedly had plenty of occasions to make judgments regarding conflicts of interest by government officials. The Willis-Wade situation should be an easy call for someone with Mr. Eisen’s intelligence, education (he is a Harvard Law School graduate) and experience.
Government agencies or institutions admonish their employees to strictly avoid conflicts of interest, which are relatively easy to identify. Whenever someone stands to gain personally from a decision made in the course of that person’s government service, a conflict is created. Gain can be material or intangible, and the gain can be indirect, through a benefit to a relative or friend. If such a situation arises, the government employee in that situation must take action.
By disclosing to appropriate supervisors or peers the existence of a likely conflict, the employee can begin insulating himself or herself from the conflict. The disclosure, if made to an ethics adviser, can then lead to a specific course of action intended to avoid the conflict of interest. Of the available courses of action, the most frequently adopted is recusal — not participating in any manner in the decision-making regarding the possible benefit.
It is both odd and disturbing that a prosecutor, especially one who is prosecuting a high-profile defendant on serious charges, should not have taken those steps. It is also disconcerting that when confronted with the conflict of interest charge, her only response has thus far been to assert racism. The rules regarding conflicts of interest are certainly not race-based.
I have had occasion in my legal career to consider the application of ethical rules to government employees. I have even lectured on the subject, and Mr. Eisen has attended one of my lectures. He heard me intone the basic rules regarding conflicts of interest affecting government employees, undoubtedly echoing the very rules that he must have described to White House employees during his tenure there.
It is, therefore, startling to read that Mr. Eisen has called upon Nathan Wade to resign his position because, as Mr. Eisen put it, “No matter the law, discretion is the better course of valor.” Mr. Eisen is assuredly correct about this fundamental principle. But in all other respects, he has got it backward. It is not Mr. Wade who has to resign (although I would think that this would be an appropriate step). It is Ms. Willis who needs to resign.
Ms. Willis, not Mr. Wade, is the government employee who has breached the fundamental notion that government employees must avoid conflicts of interest, including the appearance of such conflicts.
Today, it is not yet clear whether Ms. Willis hired Mr. Wade before or after she began the alleged affair with him, but in either case, the ultimate outcome must be the same. If Ms. Willis was having an affair with him when she hired him and set his compensation, she flagrantly breached her duty of impartiality in the hiring of personnel.
If, on the other hand, she hired him and then began a relationship with him, while his hiring would not have created a conflict of interest, his continued employment after the beginning of a relationship would have created that conflict. In either case, Ms. Willis should have at least disclosed the relationship and recused herself from any role with respect to Mr. Wade’s employment, neither of which she apparently did.
Mr. Eisen, one of the leading ethics specialists in Washington, certainly knows all of this. While I laud him for calling upon Mr. Wade to resign — he is the first Democrat to do so — I must call him out for failing to put his finger on the real issue: Ms. Willis’ behavior. Could it be that Mr. Eisen’s failure to do this has something to do with his partisanship and evident dislike of Donald Trump? Partisan beliefs can blind any of us to even the most obvious.
Mr. Eisen’s perspective notwithstanding, if Ms. Willis does not get out of the way, her seeming ethical lapse will become an overwhelming distraction to the prosecution being conducted by her office. The former president may then, as the result of the ethical challenge of his prosecutor, have a much easier time defending himself against the claims that Ms. Willis has made against him.
• Gerard Leval is a partner in the Washington office of a national law firm. He is the author of “Lobbying for Equality: Jacques Godard and the Struggle for Jewish Civil Rights During the French Revolution,” published by HUC Press.
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