Editor's note: This piece was co-authored by Steve Gill.
Who is the judge overseeing the Fulton County racketeering case against Donald Trump and his 18 co-defendants? Is he right for the job?
For a job of such magnitude, with such political stakes in a presidential election year, these are questions worth asking. And we need to answer them honestly, whether you’re pro- or anti-Trump.
This is the truth: Judge Scott McAfee has his own possible self-interest and potential conflicts of note. Appointed by never-Trumper Governor Brian Kemp in December 2022, McAfee filled the seat of retiring Chief Judge Christopher Brasher in the Fulton County Superior Court. After only a few months on the job, he was randomly selected for the high-profile Trump RICO case, filed by District Attorney Fani Willis last August.
Prior to McAfee’s appointment, Kemp had appointed him as Georgia's Inspector General in 2021, grooming him up the ranks. Now, Kemp is balking at launching any investigations of Willis and the special prosecutor she hired, Nathan Wade, despite abundant evidence that they were involved in an inappropriate personal relationship. All the while, McAfee is seeking re-election to a full four-year term in the heavily Democrat stronghold of Atlanta this May.
How “blue” is Fulton County? In 2020, Trump lost the county to Biden by hundreds of thousands of votes, while narrowly losing in the statewide vote count. Adding to the intrigue is the fact that Trump and his co-defendants have raised questions about the vote-counting process in Fulton County—a key element in the RICO case against them.
In his campaign flier, McAfee states, “As an Assistant United States Attorney in the Northern District of Georgia, I investigated and prosecuted major drug trafficking organizations and fraud conspiracies…Serving this community is a tremendous honor, which is why I'm running for a full term (as Fulton County Superior Court judge) in 2024. I hope I can count on your support and vote.”
This begs the question: Is McAfee motivated by self-interest to not dismiss the case against Trump and his co-defendants, given the heavy Democrat voting block of Fulton County? Perhaps. A reportedly conservative judge like McAfee presumably won’t perform as well in May’s election if he issues future rulings that are seen as pro-Trump.
So, is McAfee willing to sacrifice his nascent judicial career by following the law—fairly and impartially?
Interestingly, McAfee has also worked with Willis, who served as his supervisor for a time when he worked in the Fulton County DA office from 2015 to 2018. This suggests there may be a built-in conflict of interest, due to the inverted boss-underling relationship. On this point alone, McAfee should recuse himself, given his past relationship with Willis. Was that previous relationship fully disclosed to the defendants and the general public, when the case was first assigned to him?
Lastly, there was the incident on the morning of August 14th, 2023, when the Trump indictments were mistakenly leaked to the public, prior to them being heard by the grand jury. The Fulton County Court Clerk quickly withdrew the indictments published online, but it was too late. In the leaked indictment that was caught by eagle-eyed legal reporters, the original judge assigned to the RICO case was female. It was only in the second and official release of the indictment that McAfee was appointed to the case.
Was this a case of actual error or judge-shopping by the DA? There has never been a detailed account of how an indictment and selection of a judge occurred before the grand jury acted.
This week, McAfee scheduled a hearing for Feb 15th, 2024 for Willis, his old boss, to respond to allegations involving her improper relationship with Wade. But how impartial can McAfee be?
What is the easiest exit strategy for McAfee that allows him to follow the law while preserving his electability? His best option is to first acknowledge the deep and obvious prosecutorial misconduct of the Fulton County DA and the special prosecutor she selected, and with whom she has traveled extensively on non-business trips. He could also acknowledge Wade’s lack of criminal prosecutorial experience and his numerous billed meetings with Biden White House officials that appear to indicate some level of political coordination targeting Trump. But, most importantly, McAfee can immediately transfer the case to another DA in one of the surrounding counties around Atlanta.
The new DA and their team would have to seek indictments from a new grand jury, and that would only occur if the DA decided the Georgia RICO statute was applicable in this particular case regarding the alleged actions of Trump and his co-defendants. That would obviously put any prosecution of Trump in Georgia beyond the November election date, but it would also give McAfee the opportunity to pass this hot potato to someone else—before he has to face voters in deep-blue Fulton County come May.
It is unlikely that McAfee will take any such action before the February 15th evidentiary hearing regarding the Willis-Wade relationship. But the questions won’t go away, and Americans need answers. Stay tuned: This three-ring circus is just getting started.
Angie Wong is a political commentator, columnist, and co-host of “The Final Countdown.” Steve Gill is an attorney and talk radio host.
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