Fulton prosecutors limp out of ugly disqualification fight
Fulton prosecutors limp out of ugly disqualification fight
Fani Willis ekes out a win ... sort of.
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On Friday morning, the Fulton County District Attorney’s Office squeezed out a win of sorts in the Trump RICO case.
Judge Scott McAfee ruled that District Attorney Fani Willis’s romantic relationship with Nathan Wade, the special prosecutor hired by her office to oversee the case, was not sufficient justification to disqualify the office from the case. The prosecution is now back on track, albeit minus Wade and with the DA and her office looking much the worse for wear.
But there’s still a possibility that the issue will wind up sidetracked on appeal for months thanks to the DA’s horrendously bad decision to date an employee while working on the biggest case of her career.
How it started …
In January, Trump’s co-defendant Mike Roman filed a motion to disqualify Willis and her office, alleging that she had “engaged in an improper, clandestine personal relationship during the pendency of this case, which has resulted in the special prosecutor, and, in turn, the district attorney, profiting significantly from this prosecution at the expense of the taxpayers.” Specifically, he alleged that the pair traveled together, and that this gave Willis had an incentive to prolong the case so that Wade could pay for their trips.
Roman, who was indicted for violation of the Georgia RICO Act, plus conspiracies to commit forgery, submit false statements and writings, impersonate a public officer, and file false documents, is no stranger to dirty pool. He worked as an oppo-researcher for the Koch brothers, and, before entering Trump’s orbit, his most public op involved scaremongering about the New Black Panther Party during the 2008 election. He flogged lies about vote fraud before the 2016 election, when he expected Trump to lose, and so in 2020 he simply dusted off the same playbook in an attempt to overturn President Biden’s victory. He even played a role in delivering fake electoral certificates for Wisconsin and Michigan to Congress on January 6, 2021, in the hopes that Mike Pence would swap them in for the real ones.
With this background, Roman had zero scruples about trawling through the details of Wade’s messy divorce, while playing on vile stereotypes about Black women’s sexuality. He and his lawyer Ashleigh Merchant even used cell phone records to try to pinpoint the exact date when Willis and Wade began a sexual relationship.
“It’s highly offensive,” Willis shot back on the witness stand when Merchant suggested that Willis had begun sleeping with Wade immediately after meeting him at a judicial conference in 2019.
Indeed, Willis was extremely combative, both on the stand and off. And while the other defendants took a cautious approach to Roman’s salacious allegations, DA Willis’s speech in a historic Black church on the Sunday before MLK Day formed the basis of the second serious motion for disqualification — this one filed by Trump himself.
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From the pulpit at Big Bethel AME, DA Willis defended her decision to hire Wade. In a sermon fashioned as a letter to God, she claimed that attacks on his qualifications, as compared to the two other private attorneys hired by her office, were grounded in racism.
First thing they say. Oh, she going to play the race card now? But no, God, isn’t it them who’s playing the race card when they only question one? Isn’t it them playing the race card when they constantly think I need someone from some other jurisdiction in some other state to tell me how to do a job I’ve been doing almost 30 years?
On January 25, Trump moved to join Roman’s motion to disqualify, adding an allegation of forensic misconduct under Georgia Rule of Professional Conduct 3.8, which obliges a prosecutor to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
Specifically, the DA’s extrajudicial comments … constitute a glaring, flagrant, and calculated effort to foment racial bias into this case by publicly denouncing the defendants for somehow daring to question her decision to hire a Black man (without also mentioning that she is alleged to have had a workplace affair with the same man) to be a special prosecutor. These assertions by the DA engender a great likelihood of substantial prejudice towards the defendants in the eyes of the public in general, and prospective jurors in Fulton County in particular. Moreover, the DA’s self-serving comments came with the added, sought after, benefit of garnering racially based sympathy for her self-inflicted quagmire.
Trump’s lawyers suggested Willis should be disbarred. But, conceding that would be outside Judge McAfee’s remit, they said they’d settle for dismissing the indictment and barring Willis’s office from ever investigating the former president again.
Faced with credible allegations that Willis had financially benefited from Wade’s employment, Judge McAfee had no choice but to hold hearings in February to interrogate the defendants’ claims. And those hearings were very, very ugly.
How it’s going …
There was conflicting testimony about whether Willis and Wade’s relationship began before or after he was hired by her office in 2021. Willis’s former friend Robin Yeartie testified that the two had begun dating in 2020. But she presented no corroborating evidence and had an apparent axe to grind, since she was pushed out of a job at the prosecutor’s office and never spoke to Willis again.
Wade was forced to concede on the stand that he’d lied about the relationship in his divorce filings, saying that he believed his marriage was spiritually over in 2015, and thus sexual relationships in 2022 didn’t count. His former law partner Terrance Bradley attempted to get out of testifying by claiming attorney-client privilege as Wade’s divorce lawyer. On the stand, Bradley admitted that he had gossiped about Willis and Wade’s relationship with Merchant and that he had been pushed out of the law practice after an allegation of sexual impropriety.
But Willis’s testimony was most incendiary of all. She accused Merchant of lying and described her work as “contrary to democracy,” insisted that she’d reimbursed Wade in cash for her half of their travel, and implied that he’d been too unhealthy for sex in 2020.
“You’re confused. You think I’m on trial,” she snorted derisively. “These (defendants) are on trial for trying to steal an election in 2020. I’m not on trial, no matter how hard you try to put me on trial.”
This was wildly inappropriate behavior for a prosecutor, showing disrespect for the court, opposing counsel, and the defendants’ due process rights. And while it might have played well for a lay audience watching online, many lawyers, including Judge McAfee, were appalled.
On Friday morning, the judge released a scathing order permitting the Fulton County District Attorney’s Office to stay on the case, but utterly shredding the prosecutors’ conduct. (It was reportedly ready several days earlier, but withheld until he could make security arrangements for the judge’s family.)
The judge castigated Willis for her “legally improper” sermon, which “cast racial aspersions at an indicted Defendant’s decision to file this pretrial motion.” He opined that her speech could merit professional discipline from the Georgia bar and suggested that the defendants might wish to seek a gag order on the prosecutor’s office. He disdained Wade’s “patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce,” noting that it “indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.” And he discounted Bradley’s testimony entirely due to the witness’s “inconsistencies, demeanor, and generally non-responsive answers.” (That is very much not how a lawyer wants a judge to describe him.)
The court found that the defendants had not met their burden of conclusively proving that Willis and Wade began their relationship before he was hired or that she had a financial stake in the case, but said that an “odor of mendacity remains.”
“This finding is by no means an indication that the Court condones this tremendous lapse in judgment or the unprofessional manner of the District Attorney’s testimony during the evidentiary hearing,” he wrote. “Rather, it is the undersigned’s opinion that Georgia law does not permit the finding of an actual conflict for simply making bad choices — even repeatedly — and it is the trial court’s duty to confine itself to the relevant issues and applicable law properly brought before it.”
But the lack of an actual conflict did not alleviate the “significant appearance of impropriety that infects the current structure of the prosecution team.” Faced with this debacle, members of the public might “reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences.”
“As long as Wade remains on the case, this unnecessary perception will persist,” Judge McAfee wrote, offering Willis the choice to disqualify her office or to fire Wade.
What’s next?
Wade offered his resignation immediately, “in the interest of democracy, in dedication to the American public, and to move this case forward as quickly as possible.” Just after that, Willis accepted, in a letter effusively praising Wade’s work, as well as his “patriotism, courage, and dedication to justice.”
Georgia defense lawyer Andrew Fleischman described it as a “pyrrhic victory” for Willis.
“Willis gets to remain on the case, but in exchange, she now faces county, state, and federal scrutiny, and an allegation from the judge on the case that her own testimony bore the odor of mendacity, as well as the possibility of further delay through a defense appeal,” he said. “There is no doubt that if Willis knew she could have avoided such a victory by firing Wade in December, she'd have done it.”
This may be the end of the matter, although the defendants have until March 25 to request a certificate of review from Judge McAfee which would authorize them to seek immediate appellate relief. If the court grants the request, it will be up to the Georgia Court of Appeals whether to take the case. But if that happens, it will halt proceedings in the trial court for months on end, giving Trump the delay he’s sought from the beginning. Trump has every incentive to take his shot at an interlocutory appeal, and he seems poised to do just that.
“While respecting the Court’s decision, we believe that the Court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade, including the financial benefits, testifying untruthfully about when their personal relationship began, as well as Willis’ extrajudicial MLK ‘church speech,’” his lawyer Steve Sadow told the Atlanta Journal-Constitution.
But even if Judge McAfee refuses to grant the certificate of review, Trump and Roman have managed to drag the Fulton County District Attorney’s Office through the mud while burning two months of court time.
“Filing this motion was very strategically smart of the defense, no matter the outcome,” Fleischman said.
That’s it for today
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We’ll be back with more Monday. Until then, have a good one.
In the era of $250,000 RV gifts and hob-nobbing with ecclesiastical influencers, it’s heartening to know that only sex carries a whiff of impropriety sufficient to disrupt the workings of our “system” of “justice.” S/
The judge overstepped. He should have limited testimony to whether there was a financial benefit, or not. That’s the only corrupting influence: the accusation was that it might cause Fani to drag out the case. Fani isn’t dragging out the case; the defendant is.
We can scream all we want about how Fani Willis can’t make a single misstep, because it’s somehow “on her” to save the country from this mess. That’s unrealistic and particularly annoying when the expectation is directed at a Black woman.
We are ALL entitled to the pursuit of happiness and that if two adults who work with one another want to have a sexual relationship—regardless of anyone’s marital status—that’s their choice. Whether she and Wade have sex is irrelevant.