SORRY FOR THE DELAY — A prosecutor’s credibility is among their most valuable assets, but it can be damaged in an instant. It’s a lesson many prosecutors know instinctively — and one that Fani Willis, the Fulton County district attorney who charged Donald Trump with a racketeering conspiracy in Georgia following the 2020 election, learned today after a scathing ruling from the judge overseeing the case. The decision concerned whether Willis and her office could remain on the case after the world learned that she and the lead prosecutor on the case, Nathan Wade, had been engaged in a romantic relationship. Judge Scott McAfee concluded that Willis and her office could stay on the case if Wade left the team — a step that the judge said was necessary in order to prevent “a significant appearance of impropriety” that resulted from the relationship. Within hours, Wade had stepped aside. On its face the decision is a victory for Willis because it provides a path forward for the case to proceed, but the judge made a series of sharply worded observations about Willis’s conduct. He concluded that Willis had engaged in a “tremendous lapse in judgment” and that she had testified in an “unprofessional manner” when she took the stand last month during an evidentiary hearing about the allegations. He questioned the veracity of testimony provided by Willis and Wade, writing that there were “reasonable questions” about whether they had “testified untruthfully about the timing of their relationship.” Judge McAfee also took issue with Willis’s speech at Big Bethel AME Church in Atlanta back in January, shortly after one of the defendant’s first raised the allegations in a court filing. Willis very unwisely questioned whether the attacks on her had been racially motivated. The judge described the speech as “legally improper.” “Providing this type of public comment,” he wrote, “creates dangerous waters for the District Attorney to wade further into.” He indicated that he is open to a gag order that would prevent the office from publicly commenting on the case outside the courtroom. So what does this all mean? Supporters of the case can take solace in the fact that the case is likely to remain on track for the time being. This does not, however, mean that there will be a trial this year. That has always been a longshot given the nature of the case, the number of defendants and complex legal questions at issue, and the inevitable prospect of unplanned developments — like a months-long detour and headline-generating national controversy concerning the personal relationship of two of the prosecutors. As a general matter, state court prosecutions with 19 defendants do not glide to trial in less than a year, notwithstanding what either the D.A. or her most ardent supporters in the media might have said. Just this week, the judge separately dismissed six of the counts in the indictment while explaining that prosecutors can try to refile them with more specificity, which they may very well try to do. This is to say nothing of the many pending and prospective pretrial issues that have yet to be resolved. Of course, if Trump wins his bid for a second nonconsecutive term, that will complicate matters considerably. Trump will likely argue that he should not be forced to stand trial while in office because doing so would improperly interfere with his constitutional duties as president. If successful, that would presumably leave the D.A.’s office free to put the rest of the defendants on trial during a second Trump term, with the hope that they might separately be able to continue the case against Trump after he leaves office. The real impact of the judge’s ruling has less to do with any perceived effect on a trial date — which has not yet been set even on a provisional basis — than on the prosecutors’ likelihood of success if or when this case goes to trial. Prosecutors need their credibility to bring successful cases. The fact that jurors presumptively trust prosecutors — whether that presumption is reasonable or not — is one of their biggest advantages in any given case. When their credibility takes a hit, their cases can be imperiled too. The audience for Willis’s behavior in recent months has not just been talking heads on cable news. It has also included her constituents — otherwise known as the jury pool — and there is reason to believe that many of them did not like what they saw from their D.A. in recent months. If some of them do not trust her at the moment, that is a problem for both her and the case. The challenge for Willis now is to rebuild as much of that lost trust as possible. There is time — maybe a lot of it. The question is whether she is capable of climbing out of a hole that she dug for herself. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight’s author at akhardori@politico.com.
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