When asked about meetings with Democratic prosecutors and politicians during a House Judiciary Committee deposition, Wade failed to recall the details.
When asked about meetings with Democratic prosecutors and politicians during a House Judiciary Committee deposition, Wade failed to recall the details.
O ur James Lynch has a solid report on Nathan Wade’s recent appearance for a closed-door deposition before the House Judiciary Committee. As we recapped last week, Wade is the Atlanta lawyer who was recruited by his paramour — Fulton County’s elected Democratic district attorney, Fani Willis — to prosecute Donald Trump and numerous other defendants in a 2020 election-interference case. Wade was married at the time, so the ensuing scandal embroiled Willis in his divorce proceeding; it also raised issues of prosecutorial self-dealing, conflict of interest, and potentially criminal financial fraud and perjury that led to Wade’s recusal from the case.
In my view, Willis, too, should have been disqualified. Judge Scott McAffee’s refusal to do that, despite finding that testimony by Willis and Wade had filled his courtroom with the “odor of mendacity,” is being appealed. No decision is expected on that issue until next year, which is part of why the case is in suspended animation. (Given the nature of the charges and anticipated evidence, Trump will have major immunity claims to raise when and if the case against him proceeds.)
As James details, one intriguing aspect of Wade’s testimony is the fact that he had no business being in a complex criminal prosecution. By his own admission, Wade was clueless about RICO — Georgia’s analogue of the federal Racketeer Influenced and Corrupt Organizations Act — and had to be schooled on the subject. Naturally, that undermines Willis’s story that she brought Wade in, and paid him at a very high rate, because he was an experienced hand needed for a case of great magnitude. It is fair to infer, instead, that he was recruited because he was her boyfriend and she got the benefit of the salary she paid him as they took vacations together.
As I’ve opined on other occasions (as a former prosecutor who worked organized-crime cases for many years), I don’t think Willis has a sound grasp of RICO, either. Moreover, the trifling pleas she has taken in the case, after proclaiming with great fanfare that Trump and his cohorts were trying to destroy the republic itself, are testaments to her unseriousness.
What is especially interesting about Wade’s deposition testimony is the amnesia he has developed regarding what were obviously lawfare strategy sessions among Democratic prosecutors and politicians. James reports:
As special prosecutor, Wade confirmed that he met with Biden administration officials on multiple occasions, but he hesitated to disclose details during his closed-door testimony. Wade also met with lawyers affiliated with the January 6th Committee, and similarly declined to talk about the details of those meetings. Throughout his testimony, Wade failed to recall the details of events he participated in, such as a Zoom call with investigators from other jurisdictions.
Reminiscent of his state testimony regarding details (in particular, the timing) of his romantic affair with Willis, Wade seems to have brought his “odor of mendacity” into Judiciary Committee chairman Jim Jordan’s hearing room. For example, Wade claims not to be able to remember any details of his meeting with Biden-Harris White House officials on November 18, 2022 — a meeting that lasted eight hours and for which he billed the people of Fulton County $2,000 ($250 per hour).
Funny thing about that. November 18, 2022, just happens to be the very day that Attorney General Merrick Garland appointed Jack Smith as special counsel to take over the federal 2020 election-interference investigation against Trump, in addition to the Mar-a-Lago documents case — an appointment Garland rationalized as being necessitated by Trump’s announcement of his candidacy for the presidency, making him President Biden’s likely opponent.
Gotta be a complete coincidence, right? Garland announces a politically driven decision regarding the federal election-interference investigation of Trump on the same day a state prosecutor was having a highly unusual meeting with White House officials in the context of a state election-interference investigation of Trump. No way we should think a politicized lawfare campaign guided by the 2024 election calendar was afoot . . . no siree!
In any event, Wade appears to have had memory lapses about three dozen times in responding to the committee’s questions.
Now, as usual when we consider lawfare stories, there’s law and then there’s politics.
It is not illegal and usually not untoward — quite the opposite — for prosecutors from different jurisdictions to meet together when they are investigating the same crime or the same suspects. This happens a lot, because criminal activity commonly crosses jurisdictional boundaries.
Sometimes such meetings are hostile. When I was a federal prosecutor in Manhattan (the Southern District of New York), I had my fair share of turf battles with federal prosecutors in Brooklyn (the Eastern District of New York) and other federal districts, with New York City’s five district attorneys, and with other prosecutors in New York and other states. But even when prosecutors are not fighting over high-profile organized-crime, political-corruption, and terrorism cases, it makes sense for them to meet cooperatively, compare notes, try to work out who is going to prosecute what crimes, make sure witnesses are not being interviewed by one office in a way that will create problems for another office’s case, and so on.
It would thus make no sense for Wade to get sudden amnesia or otherwise refuse to answer questions about those kinds of meetings — prosecutor-to-prosecutor meetings. They’re entirely appropriate.
But then there’s politics.
Prosecution is not supposed to be politicized. In fact, you may recall that in the Bush-43 administration, Attorney General Michael Mukasey was appointed after there had been something of a scandal over contacts between White House officials and the Justice Department. Such contacts are not illegal — the Justice Department reports to the president and is delegated to exercise the president’s prosecutorial power. If not managed carefully, however, communications between political operatives and law-enforcement officers can create the public appearance that partisan calculations are driving law-enforcement decisions. Hence AG Mukasey made a point of tightening up the DOJ rules to ensure that law-enforcement decisions were free of political influence.
Wade was a state prosecutor. I cannot think of a good reason for him to meet with White House officials — as opposed, say, to meeting with DOJ lawyers to coordinate access to witnesses of common interest, especially witnesses who might be former or current executive-branch officials (and whose involvement in the case would thus raise potential executive-privilege and immunity issues). I also find it strange that a state prosecutor would meet with a highly partisan congressional committee; again, a careful prosecutor would want to confine communications about a criminal investigation in which the feds had mutual interest to the Justice Department.
Finally, while there is nothing illegal about prosecutors from divergent jurisdictions meeting to coordinate their investigative activities, meeting to collaborate on partisan political objectives is another matter entirely. There is no public interest in the latter. If a group of progressive Democratic prosecutors from different jurisdictions conducted meetings to plot out a lawfare campaign against the Republican nominee in hopes of influencing the outcome of the 2024 election, that would be (or at least should be) a major scandal.
Again, a political scandal does not necessarily imply that anyone broke the law. As we’ve noted many times in connection with impeachment proceedings, profound violations of public trust by elected or appointed officials are not always penal crimes — and can in many ways be more serious than penal crimes.
Undoubtedly, all of the progressive Democratic prosecutors in the lawfare saga — including Manhattan DA Alvin Bragg, whose case was truly absurd — would insist that they had a good-faith basis to investigate Donald Trump for criminal wrongdoing. Nevertheless, if they pursued cases against him that would not have been pursued against others, if they charged him for conduct that they would not have charged had it been committed by their fellow Democrats, or if they orchestrated their efforts to inflict maximum political damage on the opposition party in connection with the 2024 election, that would be — and I believe it was — an abuse of power that did lasting damage to the justice system.
Of course, that would not mean Trump was innocent of wrongdoing. Prosecutorial discretion is central to law enforcement in our system because we recognize that not all wrongdoing should be the subject of criminal indictment. Foregoing a criminal case (or four) out of well-warranted concern that our democratic process should be decided by voters rather than prosecutors — at least in the absence of a very serious crime supported by very convincing evidence — would be an exercise in prudence, not a pronouncement on the suspect candidate’s fitness for office.